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H.B. 249

             1     

DIVISION OF OCCUPATIONAL AND

             2     
PROFESSIONAL LICENSING ACT

             3     
AMENDMENTS

             4     
1999 GENERAL SESSION

             5     
STATE OF UTAH

             6     
Sponsor: Patrice M. Arent

             7      AN ACT RELATING TO OCCUPATIONAL AND PROFESSIONAL LICENSING; REVISING
             8      THE DIVERSION PROGRAM; INCREASING THE MAXIMUM DURATION OF DIVERSION
             9      PROGRAMS; TOLLING THE STATUTE OF LIMITATIONS FOR ADMINISTRATIVE
             10      ACTION DURING DIVERSION; AND MAKING TECHNICAL CHANGES.
             11      This act affects sections of Utah Code Annotated 1953 as follows:
             12      AMENDS:
             13          58-1-404, as renumbered and amended by Chapter 297, Laws of Utah 1993
             14      Be it enacted by the Legislature of the state of Utah:
             15          Section 1. Section 58-1-404 is amended to read:
             16           58-1-404. Diversion -- Procedure.
             17          (1) As used in this section, "diversion" means suspending action to discipline a licensee
             18      charged with certain offenses within the category of unprofessional conduct on the condition that
             19      the licensee agrees to participate in an educational or rehabilitation program or fulfill some other
             20      condition.
             21          (2) (a) The director may establish, as circumstances require, a diversion advisory
             22      committee for each occupation or profession or similar groups of occupations or professions
             23      licensed by the division. The committees shall assist the director in the administration of this
             24      section.
             25          (b) Each committee shall consist of three or more licensees from the same or similar
             26      occupation or profession as the person whose conduct is the subject of the committee's
             27      consideration. The members of a diversion advisory committee shall be [nominated] appointed

             28      by the director from nominations submitted by the corresponding board established for the same
             29      or similar occupation or profession under Section 58-1-201 or from other qualified nominees
             30      developed by or submitted to the division. Committee members may not serve concurrently as
             31      members of the corresponding board. Committee members shall serve voluntarily without
             32      remuneration. The director may dissolve any diversion advisory committee, remove or request the
             33      replacement of any member of a committee, and establish any procedure that is necessary and
             34      proper for a committee's administration.
             35          (3) The director may, after consultation with the appropriate diversion advisory committee
             36      and by written agreement with the licensee, divert the licensee to a diversion program, at any time
             37      after receipt of a complaint, prior to notifying a licensee that formal disciplinary action for
             38      unprofessional conduct is being considered against the licensee, or prior to the conclusion of a
             39      hearing under Section 58-1-108 .
             40          (4) The division shall define by rule the particular offenses within the category of
             41      unprofessional conduct which may be subject to diversion. A licensee may be eligible for a
             42      diversion program only once for the same or similar offense and is not eligible if previously
             43      disciplined by the division, by a licensing agency of another state, or by a federal government
             44      agency for the same or a similar offense. Diversion programs may not be longer than [two] five
             45      years. A decision by the director not to divert a licensee is not subject to appeal or judicial review.
             46          (5) A licensee may be represented by counsel during the negotiations for diversion, at the
             47      time of the execution of the diversion agreement, and at any hearing before the director relating
             48      to a diversion program.
             49          (6) Any diversion agreement entered into between the division and the licensee shall
             50      contain a full detailed statement of the requirements agreed to by the licensee and the reasons for
             51      diversion.
             52          (7) A diversion agreement may not be approved unless the licensee in the agreement
             53      knowingly and intelligently waives the right to a hearing under Section 58-1-108 .
             54          (8) The director shall dismiss the charges against a licensee who has completed the
             55      requirements of his diversion agreement. The licensee may not thereafter be subject to disciplinary
             56      action for the conduct involved.
             57          (9) Diversion is not a determination that charges have been proven. If the charges are
             58      dismissed following diversion, the matter shall be treated as if the charge had never been filed,

             59      except the fact that a licensee has completed a diversion program and the terms and conditions of
             60      the diversion program may be considered by the division in determining appropriate disciplinary
             61      action to be taken in the event the licensee is charged in the future with the same or a similar
             62      offense. No reporting or release of information regarding the diversion program of an individual
             63      licensee or the fact that charges were filed may be made to anyone outside the division. The
             64      licensee may not be required to report to any person, agency, or corporation the fact that he has
             65      been subject to a diversion program if the licensee successfully completes the diversion program.
             66      Negotiations or hearings regarding diversion may not be subject to the requirements of Title 52,
             67      Chapter 4, Open and Public Meetings.
             68          (10) If, during the course of the diversion of a licensee, information is brought to the
             69      attention of the director that the licensee has violated the diversion agreement, and if it appears in
             70      the best interest of the public to proceed with the charges, the director after consultation with the
             71      diversion advisory committee, shall cause to be served on the licensee an order to show cause
             72      specifying the facts relied upon by the director to terminate diversion and which sets a time and
             73      place for a hearing to determine whether or not the licensee has violated the diversion agreement.
             74      If, after the hearing, the director finds that the licensee has failed to comply with any terms or
             75      conditions of the diversion agreement, the director shall proceed with the charges against the
             76      licensee which resulted in the diversion agreement plus any additional charges of unprofessional
             77      conduct arising from a violation of the diversion agreement.
             78          (11) The administrative statute of limitations for taking disciplinary action described in
             79      Subsection 58-1-401 (5) shall be tolled during a diversion program.




Legislative Review Note
    as of 1-20-99 11:25 AM

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

Office of Legislative Research and General Counsel

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