S.B. 83

1

OCCUPATIONAL AND PROFESSIONAL
2 LICENSING MODIFICATIONS
3 2003 GENERAL SESSION
4 STATE OF UTAH
5 Sponsor: Lyle W. Hillyard
6 This act modifies provisions of the Division of Occupational and Professional Licensing
7 Act related to reinstatement of licenses and diversion procedures. The act provides that
8 for licenses reinstated no later than 120 days after expiration the reinstatement goes back
9 to the date of expiration. The act allows diversion in licensee disciplinary matters as well
10 as for self-referrals. The act defines and provides for the extension and termination of a
11 diversion agreement. The act details the effect of a diversion agreement on charges
12 against a licensee of unprofessional or unlawful conduct that are under the division
13 director's jurisdiction. The act establishes a procedure to be followed by the division in
14 the event the licensee makes an intentional misrepresentation of fact in the stipulation of
15 facts part of the diversion agreement.
16 This act affects sections of Utah Code Annotated 1953 as follows:
17 AMENDS:
18 58-1-308, as last amended by Chapter 313, Laws of Utah 1994
19 58-1-404, as last amended by Chapter 234, Laws of Utah 1999
20 Be it enacted by the Legislature of the state of Utah:
21 Section 1. Section 58-1-308 is amended to read:
22 58-1-308. Term of license -- Expiration of license -- Renewal of license --
23 Reinstatement of license -- Application procedures.
24 (1) (a) Each license issued under this title shall be issued in accordance with a two-year
25 renewal cycle established by rule.
26 (b) A renewal period may be extended or shortened by as much as one year to maintain
27 established renewal cycles or to change an established renewal cycle.

28 (2) (a) The expiration date of a license shall be shown on the license.
29 (b) A license that is not renewed prior to the expiration date shown on the license
30 automatically expires.
31 [(a)] (c) A license automatically expires prior to the expiration date shown on the
32 license upon the death of a licensee who is a natural person, or upon the dissolution of a
33 licensee that is a partnership, corporation, or other business entity.
34 [(b)] (d) If the existence of a dissolved partnership, corporation, or other business
35 entity is reinstated prior to the expiration date shown upon the entity's expired license issued by
36 the division, the division shall, upon written application, reinstate the applicant's license, unless
37 it finds that the applicant no longer meets the qualifications for licensure.
38 [(c)] (e) Expiration of licensure is not an adjudicative proceeding under Title 63,
39 Chapter 46b, Administrative Procedures Act.
40 (3) (a) The division shall notify each licensee in accordance with procedures
41 established by rule that the licensee's license is due for renewal and that unless an application
42 for renewal is received by the division by the expiration date shown on the license, together
43 with the appropriate renewal fee and documentation showing completion of or compliance with
44 renewal qualifications, the license will not be renewed.
45 (b) Examples of renewal qualifications which by statute or rule the division may
46 require the licensee to document completion of or compliance with include:
47 (i) continuing education;
48 (ii) continuing competency;
49 (iii) quality assurance;
50 (iv) utilization plan and protocol;
51 (v) financial responsibility;
52 (vi) certification renewal; and
53 (vii) calibration of equipment.
54 (4) (a) (i) An application for renewal that complies with Subsection (3) is complete.
55 (ii) A renewed license shall be issued to applicants who submit a complete application,
56 unless it is apparent to the division that the applicant no longer meets the qualifications for
57 continued licensure.
58 (b) (i) The division may evaluate or verify documentation showing completion of or

59 compliance with renewal requirements on an entire population or a random sample basis, and
60 may be assisted by advisory peer committees.
61 (ii) If necessary, the division may complete its evaluation or verification subsequent to
62 renewal and, if appropriate, pursue action to suspend or revoke the license of a licensee who no
63 longer meets the qualifications for continued licensure.
64 (c) The application procedures specified in Subsection 58-1-301 (2), apply to renewal
65 applications to the extent they are not in conflict with this section.
66 (5) (a) Any license that is not renewed may be reinstated at any time within two years
67 after nonrenewal upon submission of an application for reinstatement, payment of the renewal
68 fee together with a reinstatement fee determined by the department under Section 63-38-3.2 ,
69 and upon submission of documentation showing completion of or compliance with renewal
70 qualifications.
71 (b) The application procedures specified in Subsection 58-1-301 (2) apply to the
72 reinstatement applications to the extent they are not in conflict with this section.
73 (c) Except as otherwise provided by rule, a license that is reinstated no later than 120
74 days after it expires shall be retroactively reinstated to the date it expired.
75 (6) (a) If not reinstated within two years, the holder may obtain a license only if he
76 meets requirements provided by the division by rule or by statute for a new license.
77 (b) Each licensee under this title who has been active in the licensed occupation or
78 profession while in the full-time employ of the United States government or under license to
79 practice that occupation or profession in any other state or territory of the United States may
80 reinstate his license without taking an examination by submitting an application for
81 reinstatement, paying the current annual renewal fee and the reinstatement fee, and submitting
82 documentation showing completion of or compliance with any renewal qualifications at any
83 time within six months after reestablishing domicile within Utah or terminating full-time
84 government service.
85 Section 2. Section 58-1-404 is amended to read:
86 58-1-404. Diversion -- Procedure.
87 (1) As used in this section, "diversion" means suspending action to discipline a
88 licensee who is or could be charged in a Notice of Agency Action with certain offenses within
89 the category of unprofessional or unlawful conduct on the condition that the licensee agrees to

90 participate in an educational or rehabilitation program or fulfill some other condition.
91 (2) (a) (i) The director may establish, as circumstances require, a diversion advisory
92 committee for each occupation or profession or similar groups of occupations or professions
93 licensed by the division.
94 (ii) The committees shall assist the director in the administration of this section.
95 (b) (i) Each committee shall consist of at least three [or more] licensees from the same
96 or similar occupation or profession as the person whose conduct is the subject of the
97 committee's consideration. [The]
98 (ii) The director shall appoint the members of a diversion advisory committee [shall be
99 appointed by the director] from nominations submitted by the corresponding board established
100 for the same or similar occupation or profession under Section 58-1-201 or from other qualified
101 nominees developed by or submitted to the division.
102 (iii) Committee members may not serve concurrently as members of the corresponding
103 board.
104 (iv) Committee members shall serve voluntarily without remuneration.
105 (v) The director may:
106 (A) dissolve any diversion advisory committee[,];
107 (B) remove or request the replacement of any member of a committee[,]; and
108 (C) establish any procedure that is necessary and proper for a committee's
109 administration.
110 (3) The director may, after consultation with the appropriate diversion advisory
111 committee and by written agreement with the licensee, divert the licensee to a diversion
112 program[,]:
113 (a) at any time after receipt by the division of a complaint[, prior to notifying a licensee
114 that formal disciplinary action for unprofessional conduct is being considered against the
115 licensee, or prior to the conclusion of a hearing under Section 58-1-108 .] against the licensee
116 when no adjudicative proceeding has been commenced;
117 (b) at any time prior to the conclusion of a hearing under Section 63-46b-8 when an
118 adjudicative proceeding has been commenced against the licensee; or
119 (c) after a self-referral by a licensee who is not the subject of a current investigation,
120 complaint, or adjudicative proceeding.

121 (4) [The] (a) In accordance with Title 63, Chapter 46a, Utah Administrative
122 Rulemaking Act, the division shall define by rule the particular offenses within the category of
123 unprofessional or unlawful conduct which may be subject to diversion.
124 (b) A licensee may be eligible for a diversion program only once for the same or
125 similar offense, whether the diversion program was in this state or another jurisdiction, and is
126 not eligible if previously disciplined by the division, by a licensing agency of another state, or
127 by a federal government agency for the same or a similar offense. [Diversion programs may
128 not be longer than]
129 (c) The term of a diversion agreement shall be five years or less, but may be extended
130 for an additional period of time as agreed to by the parties in writing.
131 (d) A decision by the director not to divert a licensee is not subject to appeal or judicial
132 review.
133 (5) A licensee may be represented by counsel:
134 (a) during the negotiations for diversion[,];
135 (b) at the time of the execution of the diversion agreement[,]; and
136 (c) at any hearing before the director relating to a diversion program.
137 [(6) Any diversion agreement entered into between the division and the licensee shall
138 contain a full detailed statement of the requirements agreed to by the licensee and the reasons
139 for diversion.]
140 [(7) A diversion agreement may not be approved unless the licensee in the agreement
141 knowingly and intelligently waives the right to a hearing under Section 58-1-108 .]
142 [(8) The director shall dismiss the charges against a licensee who has completed the
143 requirements of his diversion agreement. The licensee may not thereafter be subject to
144 disciplinary action for the conduct involved.]
145 [(9) Diversion is not a determination that charges have been proven. If the charges are
146 dismissed following diversion, the matter shall be treated as if the charge had never been filed,
147 except the fact that a licensee has completed a diversion program and the terms and conditions
148 of the diversion program may be considered by the division in determining appropriate
149 disciplinary action to be taken in the event the licensee is charged in the future with the same or
150 a similar offense. No reporting or release of information regarding the diversion program of an
151 individual licensee or the fact that charges were filed may be made to anyone outside the

152 division. The licensee may not be required to report to any person, agency, or corporation the
153 fact that he has been subject to a diversion program if the licensee successfully completes the
154 diversion program. Negotiations or hearings regarding diversion may not be subject to the
155 requirements of Title 52, Chapter 4, Open and Public Meetings.]
156 [(10) If, during the course of the diversion of a licensee, information is brought to the
157 attention of the director that the licensee has violated the diversion agreement, and if it appears
158 in the best interest of the public to proceed with the charges, the director after consultation with
159 the diversion advisory committee, shall cause to be served on the licensee an order to show
160 cause specifying the facts relied upon by the director to terminate diversion and which sets a
161 time and place for a hearing to determine whether or not the licensee has violated the diversion
162 agreement. If, after the hearing, the director finds that the licensee has failed to comply with
163 any terms or conditions of the diversion agreement, the director shall proceed with the charges
164 against the licensee which resulted in the diversion agreement plus any additional charges of
165 unprofessional conduct arising from a violation of the diversion agreement.]
166 [(11) The administrative statute of limitations for taking disciplinary action described
167 in Subsection 58-1-401 (5) shall be tolled during a diversion program.]
168 (6) (a) As used in this section, "diversion agreement" means a written agreement
169 between the division, through its director, and the licensee, which specifies formal terms and
170 conditions the licensee must fulfill in order to comply with the diversion program.
171 (b) (i) A diversion agreement shall contain a full detailed statement of the requirements
172 agreed to by the licensee and a full detailed stipulation of the facts upon which the diversion
173 agreement is premised.
174 (ii) The facts stipulated in the diversion agreement shall constitute binding admissions
175 of the licensee:
176 (A) in any proceeding under Subsection (6)(c) or (6)(d) to terminate the diversion
177 agreement and impose disciplinary sanctions against the licensee; and
178 (B) in any disciplinary proceeding based on unprofessional or unlawful conduct that is
179 not the basis of the diversion agreement.
180 (c) The diversion agreement shall provide that if the licensee makes an intentional
181 material misrepresentation of fact in the stipulation of facts contained in the diversion
182 agreement, the director shall initiate the procedures set forth in Subsection (13) to terminate the

183 diversion agreement and issue an order of license revocation.
184 (d) (i) The diversion agreement shall provide that if the licensee fails to comply with its
185 terms, the director shall initiate the procedures set forth in Subsection (14) to terminate the
186 diversion agreement and issue an order of license suspension, which shall be stayed in favor of
187 an order of probation having the same terms as those which comprised the diversion
188 agreement.
189 (ii) The division may waive and not include as probationary requirements any terms of
190 the diversion agreement it does not consider necessary to protect the public.
191 (iii) The term of the order of probation shall be as provided in Subsection (14)(c)(ii).
192 (e) The division director may not approve a diversion agreement unless the licensee, as
193 part of the diversion agreement:
194 (i) knowingly and intelligently waives the right to a hearing under Title 63, Chapter
195 46b, Administrative Procedures Act, for the conduct upon which the diversion agreement was
196 premised;
197 (ii) agrees to be subject to the procedures and remedies set forth in this section;
198 (iii) acknowledges an understanding of the consequences of making an intentional
199 misrepresentation of fact in the stipulation of facts contained in the diversion agreement; and
200 (iv) acknowledges an understanding of the consequences of failing to comply with the
201 terms of the diversion agreement.
202 (7) (a) If the division and the licensee enter into a diversion agreement after the
203 division has commenced an adjudicative proceeding against the licensee, the director shall stay
204 that proceeding pending completion of the diversion agreement.
205 (b) The order staying the adjudicative proceeding shall be filed in that proceeding and
206 may reference the diversion agreement.
207 (8) (a) Upon successful completion of a diversion agreement, the director shall dismiss
208 any charges under the director's jurisdiction of unprofessional or unlawful conduct that were
209 filed against the licensee.
210 (b) Whether or not an adjudicative proceeding had been commenced against the
211 licensee, the division may not thereafter subject the licensee to disciplinary action for the
212 conduct which formed the basis of the completed diversion agreement.
213 (c) Neither the execution of a diversion agreement nor the dismissal of filed charges

214 constitute disciplinary action, and no report of either may be made to disciplinary databases.
215 (d) The division may consider the completion of a diversion program and the contents
216 of the diversion agreement in determining the appropriate disciplinary action if the licensee is
217 charged in the future with the same or similar conduct.
218 (e) The order of dismissal shall be filed in the adjudicative proceeding in which the
219 misconduct was charged and may reference the diversion agreement.
220 (9) (a) Acceptance of the licensee into diversion does not preclude the division from
221 investigating or continuing to investigate the licensee for any unlawful or unprofessional
222 conduct committed before, during, or after participation in the diversion program.
223 (b) Acceptance of the licensee into diversion does not preclude the division from
224 taking disciplinary action or continuing to take disciplinary action against the licensee for
225 unlawful or unprofessional conduct committed before, during, or after participation in the
226 diversion program, except for that conduct which formed the basis for the diversion agreement.
227 (c) Any licensee terminated from the diversion program for failure to comply with the
228 diversion agreement is subject to disciplinary action by the division for acts committed before,
229 during, and after participation in the diversion program, including violations identified in the
230 diversion agreement.
231 (10) The classification, retention, and disclosure of records relating to a licensee's
232 participation in the diversion program is governed by Title 63, Chapter 2, Government Records
233 Access and Management Act, except that any provision in the diversion agreement which
234 addresses access to or release of diversion records regarding the licensee shall govern the
235 access to and release of those records.
236 (11) Notwithstanding any other provision of this section, the fact that the licensee
237 completed a diversion program and the contents of the diversion agreement itself may be
238 considered by the division in determining the appropriate disciplinary action if the licensee is
239 charged in the future with the same or similar conduct.
240 (12) Meetings regarding the diversion program are not subject to Title 52, Chapter 4,
241 Open and Public Meetings.
242 (13) (a) If, during the course of the diversion agreement, information is brought to the
243 attention of the director that the licensee made an intentional material misrepresentation of fact
244 in the stipulation of facts contained in the diversion agreement, the director shall cause to be

245 served upon the licensee an order to show cause specifying the information relied upon by the
246 director and setting a time and place for hearing to determine whether or not the licensee made
247 the intentional material misrepresentation of fact and whether the agreement should be
248 terminated on that ground.
249 (b) Proceedings to terminate a diversion agreement on the grounds that the licensee
250 made an intentional material misrepresentation of fact in the stipulation of facts contained in
251 the diversion agreement and to issue an order of license revocation shall comply with Title 63,
252 Chapter 46b, Administrative Procedures Act, except as follows:
253 (i) the notice of agency action shall be in the form of an order to show cause, which
254 shall contain all of the information specified in Subsection 63-46b-3 (2), except a statement that
255 a written response to the order to show cause is required;
256 (ii) no written response to the order to show cause is required;
257 (iii) discovery is prohibited, but the division may issue subpoenas or other orders to
258 compel production of necessary evidence on behalf of either party and all parties shall have
259 access to information contained in the division's diversion file to the extent permitted by law;
260 (iv) the hearing shall be held only after timely notice to all parties; and
261 (v) any agency review or reconsideration of an order terminating a diversion agreement
262 or of an order of license revocation pursuant to this Subsection (13) shall be limited to the
263 division director's findings of fact, conclusions of law, and order which arose out of the order
264 to show cause proceeding.
265 (c) Upon finding the licensee made an intentional material misrepresentation of fact in
266 the stipulation of facts contained in the diversion agreement and that terminating the agreement
267 is in the best interest of the public, and issuing an order to that effect, the director shall issue an
268 order of license revocation, revoking the licensee's professional license.
269 (d) The order terminating the diversion agreement and the order of license revocation
270 shall include findings of fact and conclusions of law as determined by the director following
271 the hearing or as otherwise stipulated and agreed to by the parties.
272 (e) If the diversion agreement being terminated was entered into after the division had
273 commenced an adjudicative proceeding against the licensee, that adjudicative proceeding shall
274 be considered to be merged into the order of license revocation and it may not constitute a basis
275 for any separate disciplinary action against the licensee.

276 (f) The order terminating the diversion agreement and the order of license revocation
277 shall notify the licensee of the right to request agency review or reconsideration.
278 (14) (a) If, during the course of the diversion agreement, information is brought to the
279 attention of the director that the licensee has violated the diversion agreement and if it appears
280 in the best interest of the public to proceed with charges, the director, after consultation with
281 the diversion advisory committee, shall cause to be served upon the licensee an order to show
282 cause specifying the facts relied upon by the director and setting a time and place for hearing to
283 determine whether or not the licensee has violated the diversion agreement and whether the
284 agreement should be terminated.
285 (b) Proceedings to terminate a diversion agreement and to issue an order of license
286 suspension and probation, and proceedings to terminate the probation and lift the stay of a
287 license suspension, shall comply with Title 63, Chapter 46b, Administrative Procedures Act,
288 except as follows:
289 (i) the notice of agency action shall be in the form of an order to show cause, which
290 shall contain all of the information specified in Subsection 63-46b-3 (2), except a statement that
291 a written response to the order to show cause is required;
292 (ii) no written response to the order to show cause shall be required;
293 (iii) discovery is prohibited, but the division may issue subpoenas or other orders to
294 compel production of necessary evidence on behalf of either party and all parties shall have
295 access to information contained in the division's diversion file to the extent permitted by law;
296 (iv) the hearing shall be held only after timely notice to all parties; and
297 (v) any agency review or reconsideration of an order terminating a diversion agreement
298 or of an order of license suspension and probation pursuant to this Subsection (14) shall be
299 limited to the division director's findings of fact, conclusions of law, and order which arose out
300 of the order to show cause proceeding.
301 (c) (i) Upon finding the licensee has violated the diversion agreement and that
302 terminating the agreement is in the best interest of the public, and issuing an order to that
303 effect, the director shall issue an order of license suspension, suspending the licensee's
304 professional license, but shall stay that suspension in favor of an order of probation, consisting
305 of the same terms as those which comprised the diversion agreement.
306 (ii) The period of probation shall be the time period which remained under the

307 diversion agreement, or five years from the date of the order of license suspension and
308 probation, whichever is longer, unless otherwise agreed by the parties.
309 (iii) The period of probation is tolled during any time in which the licensee does not
310 have an active license in the state.
311 (d) (i) The order terminating the diversion agreement and the order of license
312 suspension and probation shall include findings of fact and conclusions of law as determined
313 by the director following the hearing or as otherwise stipulated and agreed to by the parties.
314 (ii) The findings of fact may include those facts to which the licensee stipulated in the
315 diversion agreement and any additional facts as the director may determine in the course of the
316 hearing.
317 (e) If the diversion agreement being terminated was entered into after the division had
318 commenced an adjudicative proceeding against the licensee, that adjudicative proceeding shall
319 be considered to be merged into the order of license suspension and probation and it may not
320 constitute a basis for any separate disciplinary action against the licensee.
321 (f) The order terminating the diversion agreement and the order of license suspension
322 and probation shall notify the licensee of the right to request agency review or reconsideration.
323 (g) (i) The terms and conditions of the order of license suspension and probation may
324 be amended by order of the director, pursuant to motion or stipulation of the parties.
325 (ii) The order of the director on the motion shall not be subject to agency review, but is
326 subject to agency reconsideration under Section 63-46b-13 .
327 (h) (i) If, during the course of probation, the director has reason to believe the licensee
328 has violated the order of suspension and probation, the director shall cause to be served upon
329 the licensee an order to show cause why the probation should not be terminated and the stay of
330 suspension lifted.
331 (ii) The order to show cause shall specify the facts relied upon by the director and shall
332 set a time and place for hearing before the director to determine whether or not the licensee has
333 violated the order of suspension and probation and whether that order should be terminated and
334 the stay of suspension lifted.
335 (15) (a) Nothing in this section precludes the division from issuing an emergency order
336 pursuant to Section 63-46b-20 .
337 (b) If the division issues an emergency order against a licensee who is subject to a

338 diversion agreement with the division, that diversion agreement shall be immediately and
339 automatically terminated upon the issuance of the emergency order, without compliance with
340 the provisions of Title 63, Chapter 46b, Administrative Procedures Act.
341 (c) (i) A licensee whose diversion agreement has been terminated pursuant to
342 Subsection (15)(b) is entitled, upon request, to a posttermination hearing to challenge the
343 termination of the diversion agreement.
344 (ii) The request shall be considered a request for agency action and shall comply with
345 the requirements of Subsection 63-46b-3 (3).
346 (iii) The division shall uphold the termination of the diversion agreement if it finds
347 that:
348 (A) the licensee violated the diversion agreement; and
349 (B) it is in the best interest of the public to terminate the diversion agreement.
350 (16) The administrative statute of limitations for taking disciplinary action described in
351 Subsection 58-1-401 (5) shall be tolled during a diversion program.




Legislative Review Note
as of 12-17-02 8:48 AM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel