DAR File No. 44154

Commerce, Occupational and Professional Licensing

Section R156-46b-202

Informal Adjudicative Proceedings

Notice of Proposed Rule

(Amendment)

DAR File No.: 44154
Filed: 10/29/2019 09:46:10 AM

RULE ANALYSIS

Purpose of the rule or reason for the change:

The Division of Occupational and Professional Licensing (Division) proposes these amendments to clarify the procedures for a criminal history determination made by the Division pursuant to new Section 58-1-310 enacted by H.B. 90, passed in the 2019 General Session, and to help coordinate the Division's transition to online renewal applications.

Summary of the rule or change:

New Subsection R156-46b-202(1)(b) categorizes as "informal" adjudicative proceedings an approval or denial of an application for a criminal history determination, and a favorable or unfavorable determination based on an application for criminal history determination. New Subsection R156-46b-202(2)(e) categorizes as "informal" adjudicative proceedings disciplinary proceedings initiated by a notice of agency action concerning evaluation or verification of documentation showing completion of or compliance with renewal requirements under Subsection 58-1-308(4)(b). Nonsubstantive formatting changes are also made throughout this section for clarity.

Statutory or constitutional authorization for this rule:

• Subsection 63G-4-102(6)
• Subsection 58-1-106(1)(a)

Anticipated cost or savings to:

the state budget:

The addition of Subsection R156-46b-202(1)(b) will have no impact on the Division or other state agencies over and above the impact described in the fiscal note for H.B. 90 (2019), available online at: https://le.utah.gov/~2019/bills/static/HB0090.html, as it merely clarifies the Division's application procedures in accordance with the mandates of new Section 58-1-310. Additionally, new Subsection R156-46b-202(2)(e) will have no impact on the Division or other state agencies as it simply helps coordinate the Division's in-progress transition to online renewal applications across all occupations and professions. There will be a minimal cost to the Division of approximately $75 to disseminate this rule once the proposed amendments are made effective.

local governments:

These proposed amendments are not expected to impact local governments as it will not affect local governments' practices or procedures.

small businesses:

The addition of Subsection R156-46b-202(1)(b) will only impact individuals who seek an advance criminal history determination from the Division as authorized by new Section 58-1-310, and it is not expected to impact small businesses. New Subsection R156-46b-202(2)(e) will help streamline the renewal application experience for most persons and is therefore expected to indirectly benefit almost every person applying for license renewal with the Division, including small business licensees and non-small businesses that are owned by or employ licensees. However, quantifying this indirect impact for the Division's huge variety of renewal applicants is not possible because any savings will vary widely depending on circumstances.

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

The addition of Subsection R156-46b-202(1)(b) will affect an estimated 456 individuals annually who will seek an advance criminal history determination from the Division, but because this categorization merely clarifies the Division's application procedures in accordance with the mandates of Section 58-1-310, it is not expected to impact these persons over and above the impact described in the fiscal note for H.B. (2019), available online at: https://le.utah.gov/~2019/bills/static/HB0090.html. New Subsection R156-46b-202(2)(e) will help streamline the renewal application experience for most persons and is therefore expected to indirectly benefit almost every person applying for license renewal with the Division. However, quantifying this indirect impact for the Division's huge variety of renewal applicants is not possible because any savings will vary widely depending on circumstances.

Compliance costs for affected persons:

The Division estimates that the addition of Subsection R156-46b-202(2)(e) will impose no compliance costs on any affected persons, and that the addition of Subsection R156-46b-202(1)(b) will have no compliance costs for any persons over and above that already included in the fiscal note for H.B. 90 (2019).

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

The Division proposes these amendments to clarify the procedures for a criminal history determination made by the Division pursuant to new Section 58-1-310 enacted by H.B. 90 (2019), and to help coordinate the Division's transition to online renewal applications. New Subsection R156-46b-202(1)(b) categorizes as "informal" adjudicative proceedings an approval or denial of an application for a criminal history determination, and a favorable or unfavorable determination based on an application for criminal history determination. New Subsection R156-46b-202(2)(e) categorizes as "informal" adjudicative proceedings disciplinary proceedings initiated by a notice of agency action concerning evaluation or verification of documentation showing completion of or compliance with renewal requirements under Section 58-1-308(4)(b). Nonsubstantive formatting changes are also made throughout this section for clarity. Small Businesses (less than 50 employees): The addition of Subsection R156-46b-202(1)(b) will only impact individuals who seek an advance criminal history determination from the Division as authorized by new Section 58-1-310, and it is not expected to impact small businesses. New Subsection R156-46b-202(2)(e) will help streamline the renewal application experience for most persons and is therefore expected to indirectly benefit every person applying for license renewal with the Division, including small business licensees and small businesses that are owned by or employ licensees. However, quantifying this indirect impact for the Division's renewal applicants is not possible because any savings will vary depending on circumstances. Non-Small Businesses (50 or more employees): The addition of Subsection R156-46b-202(1)(b) will only impact individuals who seek an advance criminal history determination from the Division as authorized by new Section 58-1-310, and it is not expected to impact non-small businesses. New Subsection R156-46b-202(2)(e) will help streamline the renewal application experience for most persons and is therefore expected to indirectly benefit almost every person applying for license renewal with the Division, including non-small business licensees and non-small businesses that are owned by or employ licensees. However, quantifying any indirect impact for the Division's renewal applicants is not possible because any savings will vary depending on circumstances.

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:

• Deborah Blackburn at the above address, by phone at 801-530-6060, by FAX at 801-530-6511, or by Internet E-mail at deborahblackburn@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:

12/16/2019

Interested persons may attend a public hearing regarding this rule:

• 12/03/2019 10:00 AM, Heber Wells Bldg, 160 E 300 S, Conference Room 474 (fourth floor), Salt Lake City, UT

This rule may become effective on:

12/23/2019

Authorized by:

Mark Steinagel, Director

Appendix 1: Regulatory Impact Summary Table*

Fiscal Costs	FY 2020	FY 2021	FY 2022
State Government	$75	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	$0
Non-Small Businesses	$0	$0	$0
Other Person	$0	$0	$0
Total Fiscal Costs:	$75	$0	$0
Fiscal Benefits
State Government	$0	$0	$0
Local Government	$0	$0	$0
Small Businesses	$0	$0	60
Non-Small Businesses	$0	$0	$0
Other Persons	$0	$0	$0
Total Fiscal Benefits:	$0	$0	$0
Net Fiscal Benefits:	$(75)	$0	$0

 

*This table only includes fiscal impacts that could be measured. If there are inestimable fiscal impacts, they will not be included in this table. Inestimable impacts for State Government, Local Government, Small Businesses and Other Persons are described above. Inestimable impacts for Non-Small Businesses are described below.

 

Appendix 2: Regulatory Impact to Non-Small Businesses

The addition of Subsection R156-46b-202(1)(b) will only impact individuals who seek an advance criminal history determination from the Division as authorized by new Section 58-1-310, and it is not expected to impact non-small businesses. New Subsection R156-46b-202(2)(e) will help streamline the renewal application experience for most persons and is therefore expected to indirectly benefit almost every person applying for license renewal with the Division, including non-small business licensees and non-small businesses that are owned by or employ licensees. However, quantifying any indirect impact for the Division's huge variety of renewal applicants is not possible because any savings will vary widely depending on circumstances.

 

The head of the Department of Commerce, Francine Giani, has reviewed and approved this fiscal analysis.

 

 

R156. Commerce, Occupational and Professional Licensing.

R156-46b. Division Utah Administrative Procedures Act Rule.

R156-46b-202. Informal Adjudicative Proceedings.

(1) The following adjudicative proceedings initiated by other than a notice of agency action are classified as informal adjudicative proceedings:

(a) approval or denial of an application for:

(i) initial licensure[,];

(ii) renewal or reinstatement of licensure[, or];

(iii) relicensure;

[(b) denial of application for initial licensure or relicensure;

(c) denial of application for renewal or reinstatement of licensure;]

([d]iv) [approval or denial of application for ]inactive or emeritus licensure status;

(v) a tax credit certificate by a psychiatrist, psychiatric mental health nurse practitioner, or volunteer retired psychiatrist under Section 58-1-111; or

(vi) criminal history determination;

(b) favorable or unfavorable determination, based on an application for criminal history determination pursuan to Section 58-1-310;

([e]c) board of appeal under Subsection 15A-1-207(3);

([f]d) approval or denial of claims against the Residence Lien Recovery Fund created under Title 38, Chapter 11;

([g]e) payment of approved claims against the Residence Lien Recovery Fund described in Subparagraph ([g]f);

([h]f) approval or denial of a request:

(i) to surrender licensure;

(ii) [approval or denial of request ]for entry into diversion program under Section 58-1-404;

(iii) for modification of a disciplinary order;

(iv) for correction of procedural or clerical mistakes; or

(v) for correction of other than procdural or clerical mistakes;

([j]g) matters relating to diversion program;

([k]h) citation hearings held in accordance with citation authority established under Title 58;

[(l) approval or denial of request for modification of disciplinary order;]

([m]i) declaratory order determining the applicability of statute, rule or order to specified circumstances, when determined by the director to be conducted as an informal adjudicative proceeding;[

(n) approval or denial of request for correction of procedural or clerical mistakes;

(o) approval or denial of request for correction of other than procedural or clerical mistakes;]

([p]j) disciplinary sanctions imposed in a stipulation or memorandum of understanding with an applicant for licensure; and

[(q) approval or denial of application for a tax credit certificate by a psychiatrist, psychiatric mental health nurse practitioner, or volunteer retired psychiatrist under Section 58-1-111; and]

([r]k) all other requests for agency action permitted by statute or rule governing the Division not specifically classified as formal adjudicative proceedings in Subsection R156-46b-201(1).

(2) The following adjudicative proceedings initiated by a notice of agency action are classified as informal adjudicative proceedings:

(a) nondisciplinary proceeding which results in cancellation of licensure;

(b) disciplinary proceedings against:

(i) a contractor, plumber, electrician, or alarm company licensed under Title 58, Chapter 55;

(ii) a controlled substance licensee under Subsection 58-37-6(4)(g); and

(iii) a contract security company or armored car company for failure to replace a qualifier as required under Section 58-63-306[.];

(c) disciplinary proceedings initiated by a notice of agency action and order to show cause concerning violations of an order governing a license;

(d) disciplinary proceedings initiated by a notice of agency action in which the allegations of misconduct are limited to one or more of the following:

(i) Subsection 58-1-501(2)(c) or (d); or

(ii) Subsections R156-1-501(1) through (5) ; and

(e) disciplinary proceedings initiated by a notice of agency action concerning evaluation or verification of documentation showing completion of or compliance with renewal requirements under Subsection 58-1-308(4)(b).

 

KEY: administrative procedures, government hearings, occupational licensing

Date of Enactment or Last Substantive Amendment: [March 13, 2017]2019

Notice of Continuation: January 5, 2016

Authorizing, and Implemented or Interpreted Law: 63G-4-102(6); 58-1-106(1)(a)