DAR File No. 41299

Commerce, Occupational and Professional Licensing

Rule R156-1

General Rule of the Division of Occupational and Professional Licensing

Notice of Proposed Rule

(Amendment)

DAR File No.: 41299
Filed: 02/09/2017 04:07:21 PM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this filing is to amend the Division's umbrella rule to: 1) carry out the mandate of H.B. 265, Mental Health Practitioner Amendments, passed during the 2016 General Session, for the Division to make rules to enable a psychiatrist or a psychiatric mental health nurse practitioner to apply for and receive a tax credit certificate from the Division under certain circumstances; 2) clarify the timing and procedure of acting upon an application for entry into a diversion agreement; and 3) make other technical revisions.

Summary of the rule or change:

Section R156-1-109 provides that the Division's Residence Lien Recovery Fund manager, bureau manager, or program coordinator designated in writing by the director, is the presiding officer for the informal adjudicative proceedings approving or denying an application for a tax credit certificate under Section 58-1-111. The new Section R156-1-111a clarifies certain definitions established in Section 58-1-111 as follows: 1) "Psychiatrist" as defined under Subsection 58-1-111(1)(d) is further defined to include a licensed physician who is board certified for the required psychiatry specialization; and 2) the definition of "volunteer retired psychiatrist" under Subsection 58-1-111(1)(f)(ii) is further defined as a physician or osteopathic physician licensed under the Retired Volunteer Health Practitioner Act, who is previously or currently board certified for a psychiatry specialization recognized by the American Board of Medical Specialties (ABMS) or the American Osteopathic Association's Bureau of Osteopathic Specialists (BOS). The new Section R156-1-111b sets out the requirements for an application to the Division for issuance of a tax credit certificate under Section 58-1-111. The applicant must provide the following: 1) the original application made available on the Division's website, containing the signed attestation of compliance; and 2) any additional documentation required by the division to verify the applicant's representations. In Section R156-1-404d, the filing codifies existing practice and clarifies the timing and procedure of acting upon an application for entry into a diversion agreement.

Statutory or constitutional authorization for this rule:

• Subsection 58-1-106(1)(a)
• Subsection 58-1-501(2)
• Section 58-1-308

Anticipated cost or savings to:

the state budget:

The Division will incur minimal costs of approximately $75 to print and distribute the rule once the proposed amendments are made effective. The cost to the state to implement the standards imposed by Section R156-1-109 and the new Sections R156-1-111a and R156-1-111b per H.B. 265 (2016) are addressed in the fiscal note attached to H.B. 265. Any additional costs to the Department of Commerce and to the Division should be absorbed in their current budgets, because implementation and application processing will be handled within regular working hours. The designation of these matters as informal adjudicative proceedings and designating a program manager as the presiding officer will reduce the time and expense incurred by the Division in processing the applications. The amount of the savings cannot be estimated as it will vary depending on the circumstances. The changes to Section R156-1-404d in this filing only codify existing practice for applicants for entry into a diversion program and will not affect or impact the state budget.

local governments:

In Section R156-1-109 and the new Sections R156-1-111a and R156-1-111b, the proposed new amendments apply only to persons licensed as psychiatrists or psychiatric mental health nurse practitioners under the specific requirements of the statute and rule who choose to establish a new practice in Utah or choose to provide volunteer behavioral health treatment in Utah to certain underserved populations. The services provided could possibly benefit a local government by improving the mental health of any population it serves that would otherwise go without needed psychiatric care because of financial reasons or lack of access to health care practitioners; the provided services may save one or more lives. The amount of the savings cannot be estimated as it will vary depending on circumstances. The changes to Section R156-1-404d in this filing only codify existing practice for applicants for entry into a diversion program, and will not affect or impact local governments.

small businesses:

In Section R156-1-109 and the new Sections R156-1-111a and R156-1-111b, psychiatrists and psychiatric mental health nurse practitioners who operate small businesses and choose to provide volunteer services will be impacted by the cost of recordkeeping and lost revenue if they substitute time they could be billing for professional services to provide volunteer health care services. However, as described in the fiscal note, these costs will be offset by the available $10,000 Utah income tax credit provided to the individual practitioner. The designation of these matters as informal adjudicative proceedings and designating a program manager as the presiding officer will reduce the time and expense incurred by small business owners who submit applications. The amount of the costs or savings cannot be estimated as it will vary from business to business depending on circumstances. The changes to Section R156-1-404d in this filing only codify existing practice for applicants for entry into a diversion program, and will not affect or impact small business.

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

In Section R156-1-109 and the new Sections R156-1-111a and R156-1-111b, licensees will bear the cost of the services provided, relative to their time spent providing the services and documenting such services, and then applying to the Division for the tax credit certificate. The designation of these matters as informal adjudicative proceedings and designating a program manager as the presiding officer will reduce the time and expense incurred by persons who submit applications. The services provided could possible benefit numerous persons in Utah by improving the mental health of those who would otherwise go without needed psychiatric care because of financial reasons or lack of access to health care practitioners; these services may save one or more lives. The amount of the cost or savings cannot be estimated as it will vary depending on circumstances. The changes to Section R156-1-404d in this filing only codify existing practice for persons who apply for entry into a diversion program, and will have no additional impact on such persons.

Compliance costs for affected persons:

In Section R156-1-109 and the new Sections R156-1-111a and R156-1-111b, a licensee will bear the cost of the volunteer services provided, relative to the licensee's time spent providing the services, documenting such services, and applying to the Division for the tax credit certificate. The changes to Section R156-1-404d in this filing will have no compliance cost for an affected person who applies for entry into a diversion program, as it only clarifies and codifies existing practice.

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

The proposed amendments to Rule R156-1 make the following changes: 1) carry out the mandate of H.B. 265, Mental Health Practitioner Amendments, passed during the 2016 General Session, for the Division to make rules to enable psychiatrists or psychiatric mental health nurse practitioners to apply for and receive a tax credit certificate from the Division under certain circumstances; 2) clarify the timing and procedure of action upon an application for entry into a diversion agreement; and 3) make certain technical revisions. Psychiatrists and psychiatric mental health nurse practitioners who operate small businesses and choose to provide volunteer services will be impacted by the cost of recordkeeping and lost revenue if they substitute time they could be billing for professional services to provide volunteer health care services. However, as described in the fiscal note to H.B. 265 (2016), these costs will be offset by the available $10,000 Utah income tax credit provided to the individual volunteers. The other changes to the rules will have a negligible fiscal impact.

Francine A. Giani, Executive Director

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

Commerce
Occupational and Professional Licensing
HEBER M WELLS BLDG
160 E 300 S
SALT LAKE CITY, UT 84111-2316

Direct questions regarding this rule to:

• Dane Ishihara at the above address, by phone at 801-530-7632, by FAX at 801-530-6511, or by Internet E-mail at dishihara@utah.gov
• David Taylor at the above address, by phone at 801-530-6214, by FAX at 801-530-6511, or by Internet E-mail at dbtaylor@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:

03/31/2017

This rule may become effective on:

04/07/2017

Authorized by:

Mark Steinagel, Director

R156. Commerce, Occupational and Professional Licensing.

R156-1. General Rule of the Division of Occupational and Professional Licensing.

R156-1-109. Presiding Officers.

In accordance with Subsection 63G-4-103(1)(h), Sections 58-1-104, 58-1-106, 58-1-109, 58-1-202, 58-1-203, 58-55-103, and 58-55-201, except as otherwise specified in writing by the Director, or for Title 58, Chapter 55, the Construction Services Commission, the designation of presiding officers is clarified or established as follows:

(1) The Division Regulatory and Compliance Officer is designated as the presiding officer for issuance of notices of agency action and for issuance of notices of hearing issued concurrently with a notice of agency action or issued in response to a request for agency action, provided that if the Division Regulatory and Compliance Officer is unable to so serve for any reason, a replacement specified by the Director is designated as the alternate presiding officer.

(2) Subsections 58-1-109(2) and 58-1-109(4) are clarified with regard to defaults as follows. Unless otherwise specified in writing by the Director, or with regard to Title 58, Chapter 55, by the Construction Services Commission, a department administrative law judge is designated as the presiding officer for entering an order of default against a party, for conducting any further proceedings necessary to complete the adjudicative proceeding, and for issuing a recommended order to the Director or Commission, respectively, determining the discipline to be imposed, licensure action to be taken, relief to be granted, etc.

(3) Except as provided in Subsection (4) or otherwise specified in writing by the Director, the presiding officer for adjudicative proceedings before the Division are as follows:

(a) Director. The Director shall be the presiding officer for:

(i) formal adjudicative proceedings described in Subsections R156-46b-201(1)(b), and R156-46b-201(2)(a) through (c), however resolved, including stipulated settlements and hearings; and

(ii) informal adjudicative proceedings described in Subsections R156-46b-202(1)(g), (i), (l), (m), (o), (p), and ([q]r), and R156-46b-202(2)(a), (b)(ii), (c), and (d), however resolved, including memoranda of understanding and stipulated settlements.

(b) Bureau Managers or Program Coordinators. Except for Title 58, Chapter 55, the bureau manager or program coordinator over the occupation or profession or program involved shall be the presiding officer for:

(i) formal adjudicative proceedings described in Subsection R156-46b-201(1)(c), for purposes of determining whether a request for a board of appeal is properly filed as set forth in Subsections R156-15A-210(1) through (4); and

(ii) informal adjudicative proceedings described in Subsections R156-46b-202(1)(a) through (d),(f), (h), (j), (n) and R156-46b-202(2)(b)(iii).

(iii) At the direction of a bureau manager or program coordinator, a licensing technician or program technician may sign an informal order in the name of the licensing technician or program technician provided the wording of the order has been approved in advance by the bureau manager or program coordinator and provided the caption "FOR THE BUREAU MANAGER" or "FOR THE PROGRAM COORDINATOR" immediately precedes the licensing technician's or program technician's signature.

(c) Citation Hearing Officer. The Division Regulatory and Compliance Officer or other citation hearing officer designated in writing by the Director shall be the presiding officer for the adjudicative proceeding described in Subsection R156-46b-202(1)(k).

(d) Uniform Building Code Commission. The Uniform Building Code Commission shall be the presiding officer for the adjudicative proceeding described in Subsection R156-46b-202(1)(e) for convening a board of appeal under Subsection 15A-1-207(3), for serving as fact finder at any evidentiary hearing associated with a board of appeal, and for entering the final order associated with a board of appeal. An administrative law judge shall perform the role specified in Subsection 58-1-109(2).

(e) Residence Lien Recovery Fund Advisory Board. The Residence Lien Recovery Fund Advisory Board shall be the presiding officer to serve as the factfinder for formal adjudicative proceedings involving the Residence Lien Recovery Fund.

(f) Residence Lien Recovery Fund Manager. The Residence Lien Recovery Fund manager, bureau manager, or program coordinator designated in writing by the Director shall be the presiding officer for the informal adjudicative proceeding described in Subsection R156-46b-202(1)(q), for approval or denial of an application for a tax credit certificate.

(4) Unless otherwise specified in writing by the Construction Services Commission, the presiding officers and process for adjudicative proceedings under Title 58, Chapter 55, are established or clarified as follows:

(a) Commission.

(i) The Construction Services Commission shall be the presiding officer for all adjudicative proceedings under Title 58, Chapter 55, except as otherwise delegated by the Commission in writing or as otherwise provided in this rule; provided, however, that all orders adopted by the Commission as a presiding officer shall require the concurrence of the Director.

(ii) Unless otherwise specified in writing by the Construction Services Commission, the Commission is designated as the presiding officer:

(A) for informal adjudicative proceedings described in Subsections R156-46b-202(1)(l), (m), (o), (p), and (q), and R156-46b-202(2)(b)(i), (c), and (d), however resolved, including memoranda of understanding and stipulated settlements;

(B) to serve as fact finder and adopt orders in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed under Title 58, Chapter 55; and

(C) to review recommended orders of a board, an administrative law judge, or other designated presiding officer who acted as the fact finder in an evidentiary hearing involving a person licensed or required to be licensed under Title 58, Chapter 55, and to adopt an order of its own. In adopting its order, the Commission may accept, modify or reject the recommended order.

(iii) If the Construction Services Commission is unable for any reason to act as the presiding officer as specified, it shall designate another presiding officer in writing to so act.

(iv) Orders of the Construction Services Commission shall address all issues before the Commission and shall be based upon the record developed in an adjudicative proceeding conducted by the Commission. In cases in which the Commission has designated another presiding officer to conduct an adjudicative proceeding and submit a recommended order, the record to be reviewed by the Commission shall consist of the findings of fact, conclusions of law, and recommended order submitted to the Commission by the presiding officer based upon the evidence presented in the adjudicative proceeding before the presiding officer.

(v) The Construction Services Commission or its designee shall submit adopted orders to the director for the Director's concurrence or rejection within 30 days after it receives a recommended order or adopts an order, whichever is earlier. An adopted order shall be deemed issued and constitute a final order upon the concurrence of the Director.

(vi) In accordance with Subsection 58-55-103(10), if the Director or the Director's designee refuses to concur in an adopted order of the Construction Services Commission or its designee, the Director or the Director's designee shall return the order to the Commission or its designee with the reasons set forth in writing for refusing to concur. The Commission or its designee shall reconsider and resubmit an adopted order, whether or not modified, within 30 days of the date of the initial or subsequent return. The Director or the Director's designee shall consider the Commission's resubmission of an adopted order and either concur rendering the order final, or refuse to concur and issue a final order, within 90 days of the date of the initial recommended order. Provided the time frames in this subsection are followed, this subsection shall not preclude an informal resolution such as an executive session of the Commission or its designee and the Director or the Director's designee to resolve the reasons for the Director's refusal to concur in an adopted order.

(vii) The record of the adjudicative proceeding shall include recommended orders, adopted orders, refusals to concur in adopted orders, and final orders.

(viii) The final order issued by the Construction Services Commission and concurred in by the Director or the Director's designee, or nonconcurred in by the Director or the Director's Designee, and issued by the Director or the Director's designee, may be appealed by filing a request for agency review with the Executive Director or the Director's designee within the Department.

(ix) The content of all orders shall comply with the requirements of Subsection 63G-4-203(1)(i) and Sections 63G-4-208 and 63G-4-209.

(b) Director. The Director or the Director's designee is designated as the presiding officer for the concurrence role, except where the Director or the Director's designee refuses to concur and issues the final order as provided by Subsection (a), on disciplinary proceedings under Subsections R156-46b-202(2)(b)(i), (c), and (d) as required by Subsection 58-55-103(1)(b)(iv).

(c) Administrative Law Judge. Unless otherwise specified in writing by the Construction Services Commission, a Department administrative law judge is designated as the presiding officer to conduct formal adjudicative proceedings before the Commission and its advisory boards, as specified in Subsection 58-1-109(2).

(d) Bureau Manager. Unless otherwise specified in writing by the Construction Services Commission, the responsible bureau manager is designated as the presiding officer for conducting informal adjudicative proceedings specified in Subsections R156-46b-202(1)(a) through (d),(h), and (n).

(e) At the direction of a bureau manager, a licensing technician may sign an informal order in the name of the licensing technician provided the wording of the order has been approved in advance by the bureau manager and provided the caption "FOR THE BUREAU MANAGER" immediately precedes the licensing technician's signature.

(f) Plumbers Licensing Board. Except as set forth in Subsection (c) or as otherwise specified in writing by the commission, the Plumbers Licensing Board is designated as the presiding officer to serve as the fact finder and to issue recommended orders to the Construction Services Commission in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed as plumbers.

(g) Electricians Licensing Board. Except as set forth in Subsection (c) or as otherwise specified in writing by the commission, the Electricians Licensing Board is designated as the presiding officer to serve as the fact finder and to issue recommended orders to the Construction Services Commission in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed as electricians.

(h) Alarm System Security and Licensing Board. Except as set forth in Subsection (c) or as otherwise specified in writing by the Commission, the Alarm System Security and Licensing Board is designated as the presiding officer to serve as the fact finder and to issue recommended orders to the Construction Services Commission in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed as alarm companies or agents.

 

R156-1-111a. Qualifications for Tax Certificate - Definitions.

In addition to the definitions in Title 58, Chapter 1, as used in Title 58, Chapter 1, or in this rule:

(1) "Psychiatrist", as defined under Subsection 58-1-111(1)(d, is further defined to include a licensed physician who is board certified for a psychiatry specialization recognized by the American Board of Medical Specialties (ABMS) or the American Osteopathic Association's Bureau of Osteopathic Specialists (BOS).

(2) Under Subsection 58-1-111(1)(f)(ii), the definition of a "volunteer retired psychiatrist" is further defined to mean a physician or osteopathic physician licensed under Title 58, Chapter 81, Retired Volunteer Health Practitioner Act, who is previously or currently board certified for a psychiatry specialization recognized by the American Board of Medical Specialties (ABMS) or the American Osteopathic Association's Bureau of Osteopathic Specialists (BOS).

 

R156-1-111b. Qualifications for Tax Certificate - Application Requirements.

An applicant for a tax credit certificate under Section 58-1-111 shall provide to the Division:

(1) the original application made available on the Division's website, containing the signed attestation of compliance; and

(2) any additional documentation that may be required by the Division to verify the applicant's representations made in the application.

 

R156-1-404d. Diversion - Procedures.

(1) [Diversion committees shall complete the duties described in Subsections R156-1-404b(1) and (2) no]No later than 60 days following the referral of a licensee to the diversion committee for possible diversion , diversion committees shall complete the duties described in Subsection R156-1-404b(1) and (2).

(2) [The director shall accept or reject the diversion committee's recommendation no later than 30 days following receipt of the recommendation.

(3) If the director finds that a licensee meets the qualifications for diversion and should be diverted,]Following the completion of diversion committee duties, the Division shall prepare and serve upon the licensee a proposed diversion agreement. The licensee shall have a period of time determined by the [diversion committee]Division not to exceed 30 days from the service of the proposed diversion agreement , to negotiate a final diversion agreement with the director. The final diversion agreement shall comply with Subsection[s] 58-1-404.

([4]3) If a final diversion agreement is not reached with the director within 30 days from service of the proposed diversion agreement, or if the director finds that the licensee does not meet the qualifications for diversion, the Division shall pursue appropriate disciplinary action against the licensee in accordance with Section 58-1-108.

([5]4) In accordance with Subsection 58-1-404(5), a licensee may be represented, at the licensee's discretion and expense, by legal counsel during negotiations for diversion, at the time of execution of the diversion agreement , and at any hearing before the director relating to a diversion program.

 

KEY: diversion programs, licensing, supervision, evidentiary restrictions

Date of Enactment or Last Substantive Amendment: [July 11, 2016]2017

Notice of Continuation: December 6, 2016

Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-308; 58-1-501(2)