MortSci 2012

Disclaimer: While every effort was made to ensure the accuracy and completeness of the Funeral Laws and regulations available on the State’s website, the documents are not official, and the state agencies preparing this website and the Compiler are not responsible for any errors or omissions which may occur in these files. Only the current published volumes of the States Laws are considered valid

Utah Funeral Law

Utah Chapter 9 Funeral Services Licensing Act 58-9-101. Title.

This chapter is known as the "Funeral Services Licensing Act."

58-9-102. Definitions.

In addition to the definitions in Section 58-1-102, as used in this chapter: (1) "Authorizing agent" means a person legally entitled to authorize the cremation of

human remains. (2) "Beneficiary" means the individual who, at the time of the beneficiary's death, is to

receive the benefit of the property and services purchased under a preneed funeral arrangement. (3) "Board" means the Board of Funeral Service created in Section 58-9-201. (4) "Body part" means: (a) a limb or other portion of the anatomy that is removed from a person or human

remains for medical purposes during treatment, surgery, biopsy, autopsy, or medical research; or (b) a human body or any portion of a body that has been donated to science for medical

research purposes. (5) "Buyer" means a person who purchases a preneed funeral arrangement. (6) "Calcination" means a process in which a dead human body is reduced by intense

heat to a residue that is not as substantive as the residue that follows cremation. (7) "Cremated remains" means all the remains of a cremated body recovered after the

completion of the cremation process, including pulverization which leaves only bone fragments reduced to unidentifiable dimensions and may possibly include the residue of foreign matter including casket material, bridgework, or eyeglasses that were cremated with the human remains.

(8) "Cremation" means the technical process, using direct flame and heat, that reduces human remains to bone fragments through heat and evaporation and includes the processing and usually the pulverization of the bone fragments.

(9) "Cremation chamber" means the enclosed space within which the cremation process takes place and which is used exclusively for the cremation of human remains.

(10) "Cremation container" means the container: (a) in which the human remains are transported to the crematory and placed in the

cremation chamber for cremation; and (b) that meets substantially all of the following standards: (i) composed of readily combustible materials suitable for cremation; (ii) able to be closed in order to provide a complete covering for the human remains; (iii) resistant to leakage or spillage; (iv) rigid enough for handling with ease; and (v) able to provide protection for the health, safety, and personal integrity of crematory

personnel. (11) "Crematory" means the building or portion of a building that houses the cremation

chamber and the holding facility.

(12) "Direct disposition" means the disposition of a dead human body: (a) as quickly as law allows; (b) without preparation of the body by embalming; and (c) without an attendant funeral service or graveside service. (13) "Disposition" means the final disposal of a dead human body by: (a) earth interment; (b) above ground burial; (c) cremation; (d) calcination; (e) burial at sea; (f) delivery to a medical institution; or (g) other lawful means. (14) "Embalming" means replacing body fluids in a dead human body with preserving

and disinfecting chemicals. (15) (a) "Funeral merchandise" means any of the following into which a dead human

body is placed in connection with the transportation or disposition of the body: (i) a vault; (ii) a casket; or (iii) other personal property. (b) "Funeral merchandise" does not include: (i) a mausoleum crypt; (ii) an interment receptacle preset in a cemetery; or (iii) a columbarium niche. (16) "Funeral service" means a service, rite, or ceremony performed: (a) with respect to the death of a human; and (b) with the body of the deceased present. (17) "Funeral service director" means an individual licensed under this chapter who may

engage in all lawful professional activities regulated and defined under the practice of funeral service.

(18) (a) "Funeral service establishment" means a place of business at a specific street address or location licensed under this chapter that is devoted to:

(i) the embalming, care, custody, shelter, preparation for burial, and final disposition of dead human bodies; and

(ii) the furnishing of services, merchandise, and products purchased from the establishment as a preneed provider under a preneed funeral arrangement.

(b) "Funeral service establishment" includes: (i) all portions of the business premises and all tools, instruments, and supplies used in

the preparation and embalming of dead human bodies for burial, cremation, and final disposition as defined by division rule; and

(ii) a facility used by the business in which funeral services may be conducted. (19) "Funeral service intern" means an individual licensed under this chapter who is

permitted to: (a) assist a funeral service director in the embalming or other preparation of a dead

human body for disposition; (b) assist a funeral service director in the cremation, calcination, or pulverization of a

dead human body or its remains; and

(c) perform other funeral service activities under the supervision of a funeral service director.

(20) "Graveside service" means a funeral service held at the location of disposition. (21) "Memorial service" means a service, rite, or ceremony performed: (a) with respect to the death of a human; and (b) without the body of the deceased present. (22) "Practice of funeral service" means: (a) supervising the receipt of custody and transportation of a dead human body to

prepare the body for: (i) disposition; or (ii) shipment to another location; (b) entering into a contract with a person to provide professional services regulated

under this chapter; (c) embalming or otherwise preparing a dead human body for disposition; (d) supervising the arrangement or conduct of: (i) a funeral service; (ii) a graveside service; or (iii) a memorial service; (e) cremation, calcination, or pulverization of a dead human body or the body's remains; (f) supervising the arrangement of: (i) a disposition; or (ii) a direct disposition; (g) facilitating: (i) a disposition; or (ii) a direct disposition; (h) supervising the sale of funeral merchandise by a funeral establishment; (i) managing or otherwise being responsible for the practice of funeral service in a

licensed funeral service establishment; (j) supervising the sale of a preneed funeral arrangement; and (k) contracting with or employing individuals to sell a preneed funeral arrangement. (23) (a) "Preneed funeral arrangement" means a written or oral agreement sold in

advance of the death of the beneficiary under which a person agrees with a buyer to provide at the death of the beneficiary any of the following as are typically provided in connection with a disposition:

(i) goods; (ii) services, including: (A) embalming services; and (B) funeral directing services; (iii) real property; or (iv) personal property, including: (A) a casket; (B) another primary container; (C) a cremation or transportation container; (D) an outer burial container; (E) a vault; (F) a grave liner;

(G) funeral clothing and accessories; (H) a monument; (I) a grave marker; and (J) a cremation urn. (b) "Preneed funeral arrangement" does not include a policy or product of life insurance

providing a death benefit cash payment upon the death of the beneficiary which is not limited to providing the products or services described in Subsection (23)(a).

(24) "Processing" means the reduction of identifiable bone fragments after the completion of the cremation process to unidentifiable bone fragments by manual means.

(25) "Pulverization" means the reduction of identifiable bone fragments after the completion of the cremation and processing to granulated particles by manual or mechanical means.

(26) "Sales agent" means an individual licensed under this chapter as a preneed funeral arrangement sales agent.

(27) "Temporary container" means a receptacle for cremated remains usually made of cardboard, plastic, or similar material designed to hold the cremated remains until an urn or other permanent container is acquired.

(28) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-9-501. (29) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-9-502. (30) "Urn" means a receptacle designed to permanently encase the cremated remains.

58-9-201. Board.

(1) There is created the Board of Funeral Service consisting of: (a) four funeral service directors who own, have an ownership interest in, or have

management responsibilities for a funeral service establishment; (b) one preneed funeral arrangement sales agent, who does not have an ownership

interest in a funeral service establishment; and (c) two members from the general public who have no association with the funeral

service profession. (2) The board shall be appointed and serve in accordance with Section 58-1-201. (3) (a) The duties and responsibilities of the board shall be in accordance with Sections

58-1-202 and 58-1-203. (b) The board shall designate one of its members on a permanent or rotating basis to: (i) assist the division in reviewing complaints concerning the unlawful or unprofessional

conduct of a licensee; and (ii) advise the division in its investigation of these complaints. (4) A board member who has, under Subsection (3), reviewed a complaint or advised the

division in its investigation may be disqualified from participating with the board when the board serves as a presiding officer of an administrative proceeding concerning the complaint.

58-9-301. Licensure required -- License classifications.

(1) A license is required to engage in the practice of funeral service, except as specifically provided in Sections 58-1-307 and 58-9-305.

(2) The division shall issue to a person who qualifies under this chapter a license in the classification of:

(a) funeral service director; (b) funeral service intern; (c) funeral service establishment; or (d) preneed funeral arrangement sales agent. 58-9-302. Qualifications for licensure.

(1) Each applicant for licensure as a funeral service director shall: (a) submit an application in a form prescribed by the division; (b) pay a fee as determined by the department under Section 63J-1-504; (c) be of good moral character in that the applicant has not been convicted of: (i) a first or second degree felony; (ii) a misdemeanor involving moral turpitude; or (iii) any other crime that when considered with the duties and responsibilities of a

funeral service director is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;

(d) have obtained a high school diploma or its equivalent or a higher education degree; (e) have obtained an associate degree, or its equivalent, in mortuary science from a

school of funeral service accredited by the American Board of Funeral Service Education or other accrediting body recognized by the U.S. Department of Education;

(f) have completed not less than 2,000 hours and 50 embalmings, over a period of not less than one year, of satisfactory performance in training as a licensed funeral service intern under the supervision of a licensed funeral service director; and

(g) obtain a passing score on examinations approved by the division in collaboration with the board.

(2) Each applicant for licensure as a funeral service intern shall: (a) submit an application in a form prescribed by the division; (b) pay a fee as determined by the department under Section 63J-1-504; (c) be of good moral character in that the applicant has not been convicted of: (i) a first or second degree felony; (ii) a misdemeanor involving moral turpitude; or (iii) any other crime that when considered with the duties and responsibilities of a

funeral service intern is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;

(d) have obtained a high school diploma or its equivalent or a higher education degree; and

(e) obtain a passing score on an examination approved by the division in collaboration with the board.

(3) Each applicant for licensure as a funeral service establishment and each funeral service establishment licensee shall:

(a) submit an application in a form prescribed by the division; (b) pay a fee as determined by the department under Section 63J-1-504; (c) have in place: (i) an embalming room for preparing dead human bodies for burial or final disposition,

which may serve one or more facilities operated by the applicant;

(ii) a refrigeration room that maintains a temperature of not more than 40 degrees fahrenheit for preserving dead human bodies prior to burial or final disposition, which may serve one or more facilities operated by the applicant; and

(iii) maintain at all times a licensed funeral service director who is responsible for the day-to-day operation of the funeral service establishment and who is personally available to perform the services for which the license is required;

(d) affiliate with a licensed preneed funeral arrangement sales agent or funeral service director if the funeral service establishment sells preneed funeral arrangements;

(e) file with the completed application a copy of each form of contract or agreement the applicant will use in the sale of preneed funeral arrangements; and

(f) provide evidence of appropriate licensure with the Insurance Department if the applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or in part by an insurance policy or product to be sold by the provider or the provider's sales agent.

(4) Each applicant for licensure as a preneed funeral arrangement sales agent shall: (a) submit an application in a form prescribed by the division; (b) pay a fee as determined by the department under Section 63J-1-504; (c) be of good moral character in that the applicant has not been convicted of: (i) a first or second degree felony; (ii) a misdemeanor involving moral turpitude; or (iii) any other crime that when considered with the duties and responsibilities of a

preneed funeral sales agent is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;

(d) have obtained a high school diploma or its equivalent or a higher education degree; (e) have obtained a passing score on an examination approved by the division in

collaboration with the board; (f) affiliate with a licensed funeral service establishment; and (g) provide evidence of appropriate licensure with the Insurance Department if the

applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or in part by an insurance policy or product.

58-9-303. Term of license -- Expiration -- Renewal.

(1) (a) The division shall issue each license under this chapter in accordance with a two-year renewal cycle established by rule.

(b) The division may by rule extend or shorten a renewal cycle by as much as one year to stagger the renewal cycles it administers.

(2) Notwithstanding Subsection (1), a person who has once held a license as a funeral service intern and has not qualified for licensure as a funeral service director may be issued a subsequent funeral service intern license for only one additional two-year term upon the specific approval of the division in collaboration with the board.

(3) At the time of renewal, the funeral service director licensee shall show satisfactory evidence of completion of continuing education as required under Section 58-9-304.

(4) Each license automatically expires on the expiration date shown on the license unless the licensee renews it in accordance with Section 58-1-308.

(5) (a) Except as otherwise provided in Subsections (5)(b) and (c), the division may take

action against the license of a funeral service establishment that does not have a licensed funeral service director.

(b) If a licensed funeral service director dies and leaves the funeral service establishment as part of the assets of the funeral service director's estate:

(i) the personal representative of the funeral service director's estate may operate the funeral service establishment under the license, or renewals of the license, for not more than two years from the date of the funeral service director's death without meeting the qualifications of an applicant and without having a licensed funeral service director; but

(ii) Subsection (5)(b)(i) does not allow an unlicensed person to perform a function that requires performance by a funeral service director licensed under this chapter.

(c) If the funeral service director of a licensed funeral service establishment terminates employment with the establishment, the establishment has 90 days to hire a new licensed funeral service director before action may be taken against the license under Subsection (5)(a).

58-9-304. Continuing education.

(1) As a condition precedent for license renewal, each funeral service director shall, during each two-year licensure cycle or other cycle defined by rule, complete 20 hours of qualified continuing professional education in accordance with standards defined by rule.

(2) If a renewal cycle is extended or shortened under Section 58-9-303, the continuing education hours required for license renewal under this section shall be increased or decreased proportionally.

58-9-305. Exemptions from licensure.

In addition to the exemptions from licensure in Section 58-1-307, a person may engage in the following acts included within the definition of the practice of funeral service, subject to the stated circumstances and limitations, without being licensed under this chapter:

(1) transportation of a dead human body in accordance with other applicable state and federal laws;

(2) ambulance or other emergency transportation of a dead human body; (3) the sale of any of the following that is delivered to the buyer or the buyer's designee

within 90 days after the day of the sale: (a) funeral merchandise; (b) headstones; or (c) other memorial merchandise; (4) the performance of funeral, graveside, or memorial services by: (a) a member of the clergy; (b) a member of the decedent's family; or (c) any other recognized individual; (5) assisting a Utah licensed funeral service director regarding disasters or special

emergencies by individuals licensed in other states as funeral service directors or embalmers; (6) activities of an unlicensed individual employed by a funeral service establishment

involving arrangement for a funeral service or the sale of funeral merchandise if the binding contract is reviewed, approved, and signed in behalf of the funeral service establishment by a

licensed funeral service director; and (7) nonprofessional tasks or activities which: (a) do not require independent professional judgment; and (b) are required of persons employed by a funeral service establishment under the

supervision of a funeral service director.

58-9-306. License by endorsement.

The division may issue a license by endorsement under this chapter to a person who: (1) provides documentation that the funeral service director's current licensure is active,

in good standing, and free from any disciplinary action; (2) submits an application on a form provided by the division; (3) pays a fee determined by the department; (4) is of good moral character in that the person has not been convicted of: (a) a first or second degree felony; (b) a misdemeanor involving moral turpitude; or (c) any other crime that when considered with the duties and responsibilities of the

license for which the person is applying is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;

(5) has completed five years of lawful and active practice as a licensed funeral service director and embalmer within the 10 years immediately preceding the application for licensure by endorsement;

(6) has passed a national examination determined by the division; and (7) has demonstrated competency of the laws and the rules of the state as determined by

the division.

58-9-401. Grounds for denial of license -- Disciplinary proceedings.

Grounds for refusing to issue a license to an applicant, for refusing to renew the license of a licensee, for revoking, suspending, restricting, or placing on probation the license of a licensee, for issuing a public or private reprimand to a licensee, and for issuing a cease and desist order shall be in accordance with Section 58-1-401.

58-9-501. Unlawful conduct.

"Unlawful conduct" includes: (1) doing any of the following to prepare a dead human body for disposition unless

licensed as a funeral service director or a funeral service intern: (a) embalming; (b) calcinating; (c) pulverizing; (d) cremating; or (e) using any method that invades a dead human body; (2) using the title "funeral service director," "funeral service intern," "preneed funeral

service sales agent," or "funeral service establishment" unless licensed under this chapter; (3) engaging in, providing, or agreeing to provide funeral arrangements to be provided

under a preneed funeral arrangement without first obtaining a license as a funeral service establishment under this chapter;

(4) engaging in selling, representing for sale, or in any other way offering to sell any contract under which preneed funeral arrangements are to be provided without first obtaining a license under this chapter as:

(a) a preneed funeral arrangement sales agent; or (b) a funeral service director; and (5) failing to comply with Section 58-9-702.

58-9-502. Unprofessional conduct.

(1) "Unprofessional conduct" includes: (a) the failure of a funeral service director to accurately document, report, and supervise

the activities of a funeral service intern; (b) knowingly soliciting the sale of any funeral service or funeral merchandise for a

person whose death occurred or was imminent prior to the solicitation; (c) paying or offering to pay a commission or anything of value to secure deceased

human remains for a funeral service or disposition to: (i) medical personnel; (ii) a nursing home; (iii) a nursing home employee; (iv) a hospice; (v) a hospice employee; (vi) clergy; (vii) a government official; or (viii) any other third party; and (d) failure to provide the following current information to the division: (i) a licensee's business address; (ii) a licensee's primary residence; (iii) a funeral service establishment's funeral service director; or (iv) a supervising funeral service director's funeral service intern's name. (2) "Unprofessional conduct" does not include: (a) general advertising directed to the public at large; or (b) responding to a notification of death from: (i) medical personnel; (ii) a nursing home; (iii) a nursing home employee; (iv) a hospice; (v) a hospice employee; (vi) clergy; (vii) a government official; or (viii) any authorized representative of the family of the deceased person.

58-9-503. Penalty for unlawful conduct.

(1) A person who violates the unlawful conduct provisions defined in Subsections 58-9-501(1) through (4) is guilty of a class A misdemeanor.

(2) A person who violates the unlawful conduct provision defined in Subsection 58-9-501(5) may be prosecuted under Title 76, Chapter 6, Part 4, Theft.

58-9-504. Authority to promulgate rules.

In addition to the authority granted under Section 58-1-106, in accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking Act, the division in collaboration with the board shall establish by rule:

(1) the minimum requirements for a licensed funeral establishment for the following: (a) physical facilities; (b) equipment; (c) instruments; and (d) supplies; (2) license cycles under Section 58-9-303; (3) standards to protect the interests of buyers and potential buyers of preneed funeral

arrangements under Section 58-9-701; and (4) standards for preneed funeral arrangement trusts.

58-9-505. Disclosure requirements.

A licensee under this chapter shall disclose information in accordance with regulations of the Federal Trade Commission and rules adopted by the division pursuant to this chapter.

58-9-506. Inspection -- Right to access.

A licensed funeral service establishment is subject to inspection during normal business hours to determine compliance with the laws of Utah by:

(1) any authorized representative of the division; or (2) any authorized representative of a local or state health department.

58-9-603. Loss of right of disposition.

(1) As used in this section, "estranged" means a physical and emotional separation from the decedent at the time of death which has existed for a period of time that clearly demonstrates an absence of affection, trust, and regard for the decedent.

(2) A person who has a right of disposition under this chapter forfeits that right and the right is passed on to the next qualifying person as listed in Section 58-9-602 under the following circumstances:

(a) the person is charged with first or second degree murder or voluntary manslaughter in connection with the decedent's death, and the charges are known by the funeral service director, except that if the charges against the person are dropped or if the person is acquitted of the charges, the right of disposition is returned to the person;

(b) the person does not exercise the person's right of disposition within three days of notification of the decedent's death or within five days of the decedent's death, whichever is earlier; or

(c) if a probate court under Section 58-9-605 determines that the person entitled to the right of disposition and the decedent were estranged at the time of death.

58-9-604. Control by funeral service director.

A funeral service director may control the disposition of the decedent and recover reasonable charges if:

(1) (a) the funeral service director has actual knowledge that none of the persons described in Section 58-9-602 exist; or

(b) after reasonable efforts the funeral service director is not able to contact any of the persons described in Section 58-9-602; and

(2) the appropriate public official charged with arranging the disposition of deceased persons fails to assume responsibility for disposition of the decedent within 36 hours after receiving written notice from the funeral service director.

58-9-605. Disputes.

(1) Notwithstanding Sections 58-9-601 through 58-9-604, the probate court for the county in which the decedent resided may:

(a) award the right of disposition to the person determined by the court to be the most fit and appropriate to carry out the right of disposition; and

(b) make decisions regarding the decedent's remains if those sharing the right of disposition cannot agree.

(2) The following provisions apply to the probate court's determinations under this section:

(a) if the persons holding the right of disposition are two or more persons with the same relationship to the decedent, and they cannot, by majority vote, make a decision regarding the disposition of the decedent's remains, any of those persons or a funeral service director with custody of the remains may petition the probate court to make the decision;

(b) in making a determination the probate court shall consider: (i) the reasonableness and practicality of the proposed funeral arrangements and

disposition; (ii) the degree of the personal relationship between the decedent and each of the persons

claiming the right of disposition; (iii) the desires of the person or persons who are ready, able, and willing to pay the cost

of the funeral arrangements and disposition; (iv) the convenience and needs of other families and friends wishing to pay their

respects; (v) the desires of the decedent; and (vi) the degree to which the funeral arrangements would allow maximum participation

by all who wish to pay their respects. (3) (a) In a dispute regarding the right of disposition, until the funeral service director

receives a court order or other written agreement signed by the parties to the dispute that decides the final disposition of the remains, the funeral service director is not liable for refusing to:

(i) accept the decedent's remains; (ii) inter or otherwise dispose of the decedent's remains; or (iii) complete the arrangements for the final disposition of the decedent's remains. (b) If, during a dispute, a funeral service director retains a decedent's remains for final

disposition, the director may: (i) embalm or refrigerate and shelter the body, or both, to preserve it while awaiting the

final decision of the probate court; and (ii) add the costs incurred under Subsection (3)(b)(i) to the final disposition costs. (4) The legal fees and court costs incurred by a funeral service director for petitioning

the probate court under Subsection (2)(a) may be added to the final disposition costs. (5) (a) This section does not require or impose a duty upon a funeral service director to

bring an action under Subsection (2)(a). (b) A funeral service director may not be held criminally or civilly liable for failing to

bring an action under Subsection (2)(a). (6) Except to the degree that it may be considered by the probate court under Subsection

(2)(b)(iii), the fact that a person has paid for or agreed to pay for all or part of the decedent's funeral arrangements and final disposition does not give that person a higher priority to the right of disposition that the person would otherwise have.

(7) The personal representative of the decedent's estate does not, by virtue of being the personal representative, have a greater claim to the right of disposition than the personal representative would otherwise have.

58-9-606. Right to rely -- Immunity.

(1) A person signing a funeral service agreement, cremation authorization form, or other authorization for a decedent's disposition warrants the truthfulness of the facts set forth in the document, including the identity of the decedent and the person's authority to order the disposition.

(2) A funeral service establishment has the right to rely on a contract or authorization executed under Subsection (1) and may carry out the instructions of the person whom its funeral service director reasonably believes holds the right of disposition.

(3) A funeral service director incurs no civil or criminal liability for failure to contact or independently investigate the existence of any next-of-kin or relative of the decedent.

(4) If there are at least two persons in the nearest class of the next-of-kin who are equal in priority and a funeral service director has no knowledge of an objection by other members of the class, the funeral service director may rely on and act according to the instructions of the first person in the class to make funeral and disposition arrangements.

(5) A funeral service establishment or funeral service director who relies in good faith on the instructions of a person claiming the right of disposition under this part is immune from civil and criminal liability and disciplinary action in carrying out the disposition of a decedent's remains in accordance with that person's instructions.

58-9-607. Authorization to cremate -- Penalties for removal of items from human

remains.

(1) Except as otherwise provided in this section, a funeral service establishment may not cremate human remains until it has received:

(a) a cremation authorization form signed by an authorizing agent; (b) a completed and executed burial transit permit or similar document, as provided by

state law, indicating that human remains are to be cremated; and (c) any other documentation required by the state, county, or municipality. (2) (a) The cremation authorization form shall contain, at a minimum, the following

information: (i) the identity of the human remains and the time and date of death, including a signed

declaration of visual identification of the deceased or refusal to visually identify the deceased; (ii) the name of the funeral director and funeral service establishment that obtained the

cremation authorization; (iii) notification as to whether the death occurred from a disease declared by the

department of health to be infectious, contagious, communicable, or dangerous to the public health;

(iv) the name of the authorizing agent and the relationship between the authorizing agent and the decedent;

(v) a representation that the authorizing agent has the right to authorize the cremation of the decedent and that the authorizing agent is not aware of any living person with a superior or equal priority right to that of the authorizing agent, except that if there is another living person with a superior or equal priority right, the form shall contain a representation that the authorizing agent has:

(A) made reasonable efforts to contact that person; (B) been unable to do so; and (C) no reason to believe that the person would object to the cremation of the decedent; (vi) authorization for the funeral service establishment to cremate the human remains; (vii) a representation that the human remains do not contain a pacemaker or other

material or implant that may be potentially hazardous or cause damage to the cremation chamber or the person performing the cremation;

(viii) the name of the person authorized to receive the cremated remains from the funeral service establishment;

(ix) the manner in which the final disposition of the cremated remains is to take place, if known;

(x) a listing of each item of value to be delivered to the funeral service establishment along with the human remains, and instructions as to how each item should be handled;

(xi) the signature of the authorizing agent, attesting to the accuracy of all representations contained on the authorization form;

(xii) if the cremation authorization form is being executed on a preneed basis, the form shall contain the disclosure required for preneed programs under this chapter; and

(xiii) except for a preneed cremation authorization, the signature of the funeral director of the funeral service establishment that obtained the cremation authorization.

(b) (i) The individual referred to in Subsection (2)(a)(xiii) shall execute the funeral authorization form as a witness and is not responsible for any of the representations made by the authorizing agent.

(ii) The funeral director or the funeral service establishment shall warrant to the crematory that the human remains delivered to the funeral service establishment have been positively identified as the decedent listed on the cremation authorization form by the authorizing agent or a designated representative of the authorizing agent.

(iii) The authorizing agent or the agent's designee may make the identification referred to in Subsection (2)(b)(ii) in person or by photograph.

(3) (a) A funeral service establishment may not accept unidentified human remains for cremation.

(b) If a funeral service establishment takes custody of a cremation container subsequent to the human remains being placed within the container, it can rely on the identification made before the remains were placed in the container.

(c) The funeral service establishment shall place appropriate identification on the exterior of the cremation container based on the prior identification.

(4) (a) A person who removes or possesses dental gold or silver, jewelry, or mementos from human remains:

(i) with purpose to deprive another over control of the property is guilty of an offense and subject to the punishments provided in Section 76-6-412;

(ii) with purpose to exercise unauthorized control and with intent to temporarily deprive another of control over the property is guilty of an offense and subject to the punishments provided in Section 76-6-404.5; and

(iii) under circumstances not amounting to Subsection (4)(a)(i) or (ii) and without specific written permission of the individual who has the right to control those remains is guilty of a class B misdemeanor.

(b) The fact that residue or any unavoidable dental gold or dental silver or other precious metals remain in a cremation chamber or other equipment or a container used in a prior cremation is not a violation of Subsection (4)(a).

58-9-608. Recordkeeping.

(1) (a) A funeral service establishment shall furnish to the person who delivers human remains to the establishment for cremation a receipt signed by a representative of the establishment and the person making the delivery, showing:

(i) the date and time of the delivery; (ii) the type of casket or alternative container delivered; (iii) the name of the person from whom the human remains were received; (iv) the name of the funeral establishment or other entity with whom the person making

the delivery is affiliated; (v) the name of the person who received the human remains on behalf of the funeral

service establishment; and (vi) the name of the decedent. (b) The funeral service establishment shall keep a copy of the receipt in its permanent

records for a period of seven years.

(2) (a) Upon release of cremated remains, a funeral service establishment shall furnish to the person who receives the cremated remains a receipt signed by a representative of the funeral service establishment and the person who receives the remains, showing:

(i) the date and time of the release; (ii) the name of the person to whom the cremated remains were released; and (iii) if applicable: (A) the name of the funeral establishment, cemetery, or other entity with whom the

person receiving the cremated remains is affiliated; (B) the name of the person who released the cremated remains on behalf of the funeral

service establishment; and (C) the name of the decedent. (b) (i) The receipt shall contain a representation from the person receiving the cremated

remains confirming that the remains will not be used for any improper purpose. (ii) Upon release of the cremated remains, the person to whom the remains were released

may transport them in any manner in the state, without a permit, and dispose of them in accordance with this chapter.

(c) The funeral service establishment shall retain a copy of the receipt in its permanent records for a period of seven years.

(3) (a) The funeral service establishment shall maintain at its place of business a permanent record of each cremation that took place at its crematory.

(b) The permanent record shall contain: (i) the name of the decedent; (ii) the date of cremation; (iii) the final disposition of the cremated remains; and (iv) any other document required by this chapter.

58-9-609. Cremation containers.

(1) (a) Except as provided in Subsection (2), a funeral service establishment may not make or enforce a rule requiring that human remains be:

(i) placed in a casket before cremation; or (ii) cremated in a casket. (b) A funeral service establishment may not refuse to accept human remains for

cremation because they are not in a casket. (2) (a) Human remains must be delivered to a crematory in a casket or cremation

container. (b) Human remains may not be removed from a casket or cremation container once

delivered to the crematory, and the casket or cremation container shall be cremated with the human remains, unless:

(i) the funeral service establishment has been provided with written instructions to the contrary by the authorizing agent; or

(ii) the funeral service establishment does not accept metal caskets for cremation.

58-9-610. Cremation procedures.

(1) A funeral service establishment may not cremate human remains until the funeral service establishment:

(a) completes and files a death certificate with the office of vital statistics and the county health department as indicated on the regular medical certificate of death or the coroner's certificate; and

(b) complies with the provisions of Section 26-4-29. (2) (a) A funeral service establishment may not cremate human remains with a

pacemaker or other battery-powered, potentially hazardous implant in place. (b) (i) An authorizing agent for the cremation of human remains is responsible for

informing the funeral service establishment in writing on the cremation authorization form about the presence of a pacemaker or other battery-powered, potentially hazardous implant in the human remains to be cremated.

(ii) (A) Except as provided in Subsection (2)(b)(ii)(B), the authorizing agent is responsible to ensure that a pacemaker or other battery-powered, potentially hazardous implant is removed prior to cremation.

(B) If the authorizing agent informs the funeral service establishment of the presence of a pacemaker or other battery-powered, potentially hazardous implant under Subsection (2)(b)(i), and the funeral service establishment fails to have the pacemaker or other battery-powered, potentially hazardous implant removed prior to cremation, then the funeral service establishment is liable for all resulting damages.

(3) Only authorized persons are permitted in the crematory while human remains are in the crematory area awaiting cremation, being cremated, or being removed from the cremation chamber.

(4) (a) Simultaneous cremation of the human remains of more than one person within the same cremation chamber or processor is not allowed, unless the funeral service establishment has received specific written authorization to do so from the authorizing agent of each person to be cremated.

(b) The written authorization, described in Subsection (4)(a), exempts the funeral license establishment from liability for co-mingling of the cremated remains during the cremation process.

(5) A funeral service establishment shall: (a) verify the identification of human remains as indicated on a cremation container

immediately before placing the human remains in the cremation chamber; (b) attach a metal identification tag to the cremation container; (c) remove the identification tag from the cremation container; and (d) place the identification tag near the cremation chamber control where the

identification tag shall remain until the cremation process is complete. (6) Upon completion of a cremation, the funeral service establishment shall: (a) in so far as is possible, remove all of the recoverable residue of the cremation process

from the cremation chamber; (b) separate all other residue from the cremation process from remaining bone

fragments, in so far as possible, and process the bone fragments so as to reduce them to unidentifiable particles; and

(c) remove anything other than the unidentifiable bone particles from the cremated residuals, as far as is possible, and dispose of that material.

(7) (a) A funeral service establishment shall pack cremated remains, including the identification tag described in Subsection (5), in a temporary container or urn ordered by the authorizing agent.

(b) The container or urn shall be packed in clean packing materials and not be contaminated with any other object, unless otherwise directed by the authorizing agent.

(c) If the cremated remains cannot fit within the designated temporary container or urn, the funeral service establishment shall:

(i) return the excess to the authorizing agent or the agent's representative in a separate container; and

(ii) mark both containers or urns on the outside with the name of the deceased person and an indication that the cremated remains of the named decedent are in both containers or urns.

(8) (a) If the cremated remains are to be shipped, then the funeral services establishment shall pack the designated temporary container or urn in a suitable, sturdy container.

(b) The funeral service establishment shall have the remains shipped only by a method that:

(i) has an available internal tracing system; and (ii) provides a receipt signed by the person accepting delivery.

58-9-611. Disposition of cremated remains.

(1) (a) An authorizing agent shall provide the person with whom cremation arrangements are made with a signed statement specifying the final disposition of the cremated remains, if known.

(b) The funeral services establishment shall retain a copy of the statement. (2) (a) The authorizing agent is responsible for the disposition of the cremated remains. (b) If the authorizing agent or the agent's representative has not specified the ultimate

disposition of or claimed the cremated remains within 60 days from the date of the cremation, the funeral service establishment may dispose of the remains in any manner permitted by law, except scattering.

(c) The authorizing agent shall reimburse the funeral services establishment for all reasonable costs incurred in disposing of the cremated remains under Subsection (2)(b).

(d) The person or entity disposing of cremated remains under this section: (i) shall make and keep a record of the disposition of the remains; and (ii) is discharged from any legal obligation or liability concerning the remains once the

disposition has been made. (e) Subsection (2)(d)(ii) applies to cremated remains in the possession of a funeral

services establishment or other responsible party as of May 5, 2008, or any time after that date. (3) (a) An authorizing agent may direct a funeral service establishment to dispose of or

arrange for the disposition of cremated remains: (i) in a crypt, niche, grave, or scattering garden located in a dedicated cemetery; (ii) by scattering them over inhabited public land, the sea, or other public waterways

subject to health and environmental laws and regulations; or (iii) in any manner on the private property of a consenting owner.

(b) If cremated remains are to be disposed of on private property, other than dedicated cemetery property, the authorizing agent shall provide the funeral service establishment with the written consent of the property owner prior to disposal of the remains.

(c) In order to scatter cremated remains under Subsection (3)(a)(ii) or (iii), the remains must be reduced to a particle size of one-eighth inch or less and removed from their closed container.

(4) A funeral service establishment may not release cremated remains for scattering under this section to the authorizing agent or the agent's designated representative until the funeral service establishment is given a receipt that shows the proper filing has been made with the local registrar of births and deaths.

58-9-612. Limitation of liability.

(1) An authorizing agent who signs a cremation authorization form warrants the truthfulness of the facts set forth on the form, including:

(a) the identity of the deceased whose remains are to be cremated; and (b) the authorizing agent's authority to order the cremation. (2) A funeral service establishment may rely upon the representations made by an

authorizing agent under Subsection (1). (3) The authorizing agent is personally and individually liable for all damage resulting

from a misstatement or misrepresentation made under Subsection (1). (4) (a) A funeral service establishment may arrange for the cremation of and cremate

human remains upon receipt of a cremation authorization form signed by an authorizing agent. (b) A funeral service establishment that arranges a cremation, cremates human remains,

or releases or disposes of cremated human remains pursuant to a cremation authorization form is not liable for an action it takes pursuant to that authorization.

(5) A funeral service establishment is not responsible or liable for any valuables delivered to the establishment with human remains to be cremated.

(6) A funeral service establishment may refuse to arrange for a cremation, to accept human remains for cremation, or to perform a cremation:

(a) if the establishment is aware of a dispute concerning the cremation of the human remains and it has not received a court order or other suitable confirmation that the dispute has been resolved;

(b) if the establishment has a reasonable basis for questioning any of the representations made by an authorizing agent; or

(c) for any other lawful reason. (7) (a) If a funeral service establishment is aware of a dispute concerning the release or

disposition of cremated remains in its possession, the establishment may refuse to release the remains until:

(i) the dispute has been resolved; or (ii) it has received a court order authorizing the release or disposition of the remains. (b) A funeral service establishment is not liable for its refusal to release or dispose of

cremated remains in accordance with this Subsection (7).

58-9-701. Preneed contract requirements.

(1) (a) Every preneed funeral arrangement sold in Utah shall be evidenced by a written contract.

(b) The funeral service establishment shall maintain a copy of the contract until five years after all of its obligations under the contract have been executed.

(2) Each preneed contract form shall: (a) be written in clear and understandable language printed in an easy-to-read type size

and style; (b) bear the preprinted name, address, telephone number, and license number of the

funeral service establishment obligated to provide the services under the contract terms; (c) be sequentially numbered by contract form; (d) clearly identify that the contract is a guaranteed product contract; (e) provide that a trust is established in accordance with the provisions of Section

58-9-702; (f) if the contract is funded by an insurance policy or product, provide that the insurance

policy or product is filed with the Insurance Department and meets the requirements of Title 31A, Insurance Code; and

(g) conform to other standards created by rule under Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to protect the interests of buyers and potential buyers.

(3) A preneed contract shall provide for payment by the buyer in a form which may be liquidated by the funeral service establishment within 30 days after the day the funeral service establishment or sales agent receives the payment.

(4) A preneed contract may not be revocable by the funeral service establishment except: (a) in the event of nonpayment; and (b) under terms and conditions clearly set forth in the contract. (5) (a) A preneed contract may not be revocable by the buyer or beneficiary except: (i) in the event of: (A) a substantial contract breach by the funeral service establishment; or (B) substantial evidence that the funeral service establishment is or will be unable to

provide the personal property or services to the beneficiary as provided under the contract; or (ii) under terms and conditions clearly set forth in the contract. (b) The contract shall contain a clear statement of the manner in which payments made

on the contract shall be refunded to the buyer or beneficiary upon revocation by the beneficiary. (6) (a) A preneed contract shall provide the buyer the option to require the funeral

service establishment to furnish a written disclosure to a person who does not live at the same residence as the buyer.

(b) The buyer may choose: (i) a full disclosure containing a copy of the entire preneed contract; (ii) a partial disclosure informing the recipient of: (A) the existence of a preneed contract; and (B) the name, address, telephone number, and license number of the funeral service

establishment obligated to provide the services under the preneed contract; or (iii) not to require the funeral service establishment to furnish a written disclosure to

another person.

58-9-702. Payments to be held in trust -- Trustee qualifications.

(1) All money representing payments for the purchase of a preneed funeral arrangement shall be deposited by the provider or sales agent receiving the payment:

(a) within 10 business days after the day on which the provider or sales agent receives the payment in the form of cash or cash equivalent; or

(b) within 35 calendar days after the day on which the provider or sales agent receives the payment in the form of a negotiable instrument.

(2) All money received under Subsection (1) shall be placed in a trust account naming as trustee a Utah financial institution authorized to engage in the trust business under Title 7, Chapter 5, Trust Business.

58-9-703. Trust agreement.

(1) Each trust established by a funeral service establishment shall be administered in accordance with a trust agreement conforming with:

(a) the requirements of this chapter; (b) rules adopted with respect to this chapter; (c) the provisions of Title 75, Chapter 7, Utah Uniform Trust Code; and (d) all other state and federal laws applicable to trusts and trust agreements. (2) Each trust agreement shall require that the funeral service establishment maintain a

copy of the trust agreement until five years after all of its obligations under the trust agreement have been executed or transferred.

(3) Each trust agreement shall require that the trustee: (a) separately account for each contract; and (b) separately record payments with respect to each contract made into the corpus of the

trust. (4) Each trust agreement shall provide for distributions from the trust in accordance with

the provisions of this chapter upon: (a) the death of the beneficiary; (b) revocation of the contract by the funeral service establishment upon nonpayment by

the buyer; or (c) revocation of the contract by the beneficiary or buyer.

58-9-704. Interest earned on trust funds.

Interest earned on trust funds shall be available for expenditure according to the following priority:

(1) to pay the reasonable trustee expenses of administering the trust within a maximum amount established by rule;

(2) to pay within a maximum amount established by rule under Section 58-9-504 the reasonable provider expenses associated with:

(a) the sale of the plan; (b) administering the collection, remittance, and accounting of the amount of payments

made into the corpus of the trust; and (c) reporting required with respect to those contracts: (i) that have been sold; and

(ii) under which the provider is obligated; (3) to pay the costs of providing any of the following for which the provider is obligated

under a specific outstanding preneed funeral arrangement contract: (a) personal property; and (b) services at need; and (4) to pay the provider available funds left in the individual trust account after: (a) all costs of providing personal property and services for which the provider is

obligated under the contract underlying the trust; or (b) (i) the contract is canceled as provided under this chapter; and (ii) all amounts payable to the buyer, beneficiary, or any other person have been paid in

full.

58-9-705. Distribution of funds.

(1) Interest earned on trust funds shall be available to the provider according to the priority set forth in Section 58-9-704.

(2) The amount of payments made into the corpus of the trust and any other amount which has been paid into the corpus of the trust shall be paid to the provider in the amount credited to a specific account upon the event of one of the following:

(a) the death of the beneficiary which shall be demonstrated to the trustee by the provider by furnishing to the trustee:

(i) a request for payment from the trust; and (ii) a certified copy of the death certificate of the beneficiary; or (b) revocation of the preneed funeral arrangement contract by either the provider or the

buyer according to the terms and conditions of the contract, which shall be demonstrated to the trustee by the provider by furnishing to the trustee satisfactory evidence that:

(i) the contract has been revoked; and (ii) the provider has paid all funds due to the buyer or beneficiary. (3) Upon an order of a court having jurisdiction, all amounts that have been paid into the

corpus of the trust shall be paid to the buyer or beneficiary in the event of: (a) a judgment to the benefit of a buyer or beneficiary upon a finding that: (i) the provider is in substantial breach of the contract; or (ii) there is substantial evidence that the provider is or will be unable to provide the

personal property or services to the beneficiary under the contract; (b) a judgment of bankruptcy against the provider; or (c) a finding by the court that determines the funds should be rightfully returned to the

buyer or beneficiary.

58-9-706. Trust funds and insurance reports.

(1) (a) Each funeral service establishment shall maintain an annual report of preneed trust funds and insurance.

(b) The report shall contain: (i) the name of the trustees with which the funeral service establishment has trust funds

on deposit; and (ii) the amount remaining on deposit in the trust fund on: (A) December 31 of the preceding year; or (B) another annual reporting period as the division may establish. (2) Each funeral service establishment may be audited by the division at any time.

58-9-707. Records of trustee -- Contents.

(1) The trustee shall keep an orderly record of all agreements. (2) The record shall contain: (a) the name and address of the person making a payment; (b) the date and the amount of each payment made; (c) the date and amount of each withdrawal and to whom paid; and (d) the name of the bank or trust company depository.

58-9-708. Audits.

(1) (a) The division may at any time: (i) audit records of the provider; and (ii) inspect records of the provider. (b) The provider or trustee shall make available to the division for examination,

inspection, or auditing all records pertaining to the accounts relating to: (i) any contract sold under this chapter; and (ii) any trust established under this chapter. (2) (a) The director may employ experts from outside the division if special need exists

to perform examinations, inspections, and audits under this section. (b) The provider shall be responsible for payment to the division of all reasonable and

necessary costs related to the employment of experts under this section.

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DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING ACT

Part 1 - Division Administration

58-1-101. Short title.

This chapter is known as the "Division of Occupational and Professional Licensing

Act."

58-1-102. Definitions.

For purpose of this title:

(1) "Department" means the Department of Commerce.

(2) "Director" means the director of the Division of Occupational and

Professional Licensing.

(3) "Division" means the Division of Occupational and Professional Licensing

created in Section 58-1-103.

(4) "Executive director" means the executive director of the Department of

Commerce.

(5) "Licensee" includes any holder of a license, certificate, registration,

permit, student card or apprentice card authorized under this title.

(6) "Unlawful conduct" has the meaning given in Subsection 58-1-501(1).

(7) "Unprofessional conduct" has the meaning given in Subsection 58-1-501(2).

58-1-103. Division created to administer licensing laws.

There is created within the Department of Commerce the Division of Occupational and

Professional Licensing. The division shall administer and enforce all licensing

laws of Title 58.

58-1-104. Director of division - Appointment - Duties.

(1) The division shall be under the supervision, direction and control of a

director. The director shall be appointed by the executive director with the

approval of the governor. The director shall hold office at the pleasure of

the governor.

(2) The director shall perform all duties, functions and responsibilities

assigned to the division by law or rule and, where provided, with the

collaboration and assistance of the boards established under this title.

58-1-105. Employment of staff.

The director, with the approval of the executive director, may employ necessary

staff, including specialists and professionals, to assist him in performing the

duties, functions and responsibilities of the division.

58-1-106. Division - Duties, functions, and responsibilities.

(1) The duties, functions and responsibilities of the division include the

following:

(a) prescribing, adopting and enforcing rules to administer this title;

(b) investigating the activities of any person whose occupation or

profession is regulated or governed by the laws and rules administered

and enforced by the division;

(c) subpoenaing witnesses, taking evidence, and requiring by subpoena duces

tecum the production of any books, papers, documents, records,

contracts, recordings, tapes, correspondence, or information relevant

to an investigation upon a finding of sufficient need by the director

or the director's designee;

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(d) taking administrative and judicial action against persons in violation

of the laws and rules administered and enforced by the division,

including the issuance of cease and desist orders;

(e) seeking injunctions and temporary restraining orders to restrain

unauthorized activity;

(f) giving public notice of board meetings;

(g) keeping records of board meetings, proceedings and actions and making

those records available for public inspection upon request;

(h) issuing, refusing to issue, revoking, suspending, renewing, refusing to

renew or otherwise acting upon any license;

(i) preparing and submitting to the governor and the Legislature an annual

report of the division's operations, activities and goals;

(j) preparing and submitting to the executive director a budget of the

expenses for the division;

(k) establishing the time and place for the administration of examinations;

and

(l) preparing lists of licensees and making these lists available to the

public at cost upon request unless otherwise prohibited by state or

federal law.

(2) The division may not include home telephone numbers or home addresses of

licensees on the lists prepared under Subsection (1)(l), except as otherwise

provided by rules of the division made in accordance with Title 63G, Chapter

3, Utah Administrative Rulemaking Act.

(3) (a) The division may provide the home address or home telephone number of a

licensee on a list prepared under Subsection (1) upon the request of an

individual who provides proper identification and the reason for the

request, in writing, to the division.

(b) A request under Subsection (3)(a) is limited to providing information

on only one licensee per request.

(c) The division shall provide, by rule, what constitutes proper

identification under Subsection (3)(a).

58-1-107. Applicability - Relationship to specific chapters under title.

The provisions of this chapter uniformly apply to the administration and

enforcement of this title. However, unless expressly prohibited in this chapter,

any provision of this chapter may be supplemented or altered by specific chapters

of this title.

58-1-108. Adjudicative proceedings.

(1) The division and all boards created under the authority of this title shall

comply with the procedures and requirements of Title 13, Chapter 1,

Department of Commerce, and Title 63G, Chapter 4, Administrative Procedures

Act, in all of their adjudicative proceedings as defined by Subsection 63G-4-

103(1).

(2) Before proceeding under Section 63G-4-502, the division shall review the

proposed action with a committee of no less than three licensees appointed by

the chairman of the licensing board created under this title for the

profession of the person against whom the action is proposed.

(3) Notwithstanding Title 63G, Chapter 4, Administrative Procedures Act, a

warning or final disposition letter, which does not constitute disciplinary

action against the addressee, issued in response to a complaint of

unprofessional or unlawful conduct under this title, does not constitute an

adjudicative proceeding.

58-1-109. Presiding officers - Content of orders - Recommended orders - Final orders -

Appeals of orders.

3

(1) Unless otherwise specified by statute or rule, the presiding officer for

adjudicative proceedings before the division shall be the director. However,

pursuant to Title 63G, Chapter 4, Administrative Procedures Act, the director

may designate in writing an individual or body of individuals to act as

presiding officer to conduct or to assist the director in conducting any part

or all of an adjudicative proceeding.

(2) Unless otherwise specified by the director, an administrative law judge shall be

designated as the presiding officer to conduct formal adjudicative

proceedings in accordance with Subsection 63G-4-102(4), Sections 63G-4-204

through 63G-4-207, and 63G-4-209.

(3) Unless otherwise specified by the director, the licensing board of the occupation

or profession that is the subject of the proceedings shall be designated as

the presiding officer to serve as fact finder at the evidentiary hearing in a

formal adjudicative proceeding.

(4) At the close of an evidentiary hearing in an adjudicative proceeding, unless

otherwise specified by the director, the presiding officer who served as the

fact finder at the hearing shall issue a recommended order based upon the

record developed at the hearing determining all issues pending before the

division.

(5) (a) The director shall issue a final order affirming the recommended order

or modifying or rejecting all of any part of the recommended order and

entering new findings of fact, conclusions of law, statement of

reasons, and order based upon the director's personal attendance at the

hearing or a review of the record developed at the hearing. Before

modifying or rejecting a recommended order, the director shall consult

with the presiding officer who issued the recommended order.

(b) If the director issues a final order modifying or rejecting a

recommended order, the licensing board of the occupation or profession

that is the subject of the proceeding may, by a two-thirds majority

vote of all board members, petition the executive director or designee

within the department to review the director's final order. The

executive director's decision shall become the final order of the

division. This subsection does not limit the right of the parties to

appeal the director's final order by filing a request for agency review

under Subsection (8).

(6) If the director is unable for any reason to rule upon a recommended order of

a presiding officer, the director may designate another person within the

division to issue a final order.

(7) If the director or the director's designee does not issue a final order

within 20 calendar days after the date of the recommended order of the

presiding officer, the recommended order becomes the final order of the

director or the director's designee.

(8) The final order of the director may be appealed by filing a request for

agency review with the executive director or the executive director's

designee within the department.

(9) 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.

Part 2 - Boards

58-1-201. Boards - Appointment - Membership - Terms - Vacancies - Quorum - Per diem and expenses - Chairman - Financial interest or faculty position in professional

school teaching continuing education prohibited.

(1) (a) (i) The executive director shall appoint the members of the boards

established under this title.

(ii) In appointing these members the executive director shall give

consideration to recommendations by members of the respective

occupations and professions and by their organizations.

4

(b) Each board shall be composed of five members, four of whom shall be

licensed or certified practitioners in good standing of the occupation

or profession the board represents, and one of whom shall be a member

of the general public, unless otherwise provided under the specific

licensing chapter.

(c) (i) The names of all persons appointed to boards shall be submitted

to the governor for confirmation or rejection.

(ii) If an appointee is rejected by the governor, the executive

director shall appoint another person in the same manner as set

forth in Subsection (1)(a).

(2) (a) (i) Except as required by Subsection (2)(b), as terms of current

board members expire, the executive director shall appoint each

new member or reappointed member to a four-year term.

(ii) Upon the expiration of the term of a board member, the board

member shall continue to serve until a successor is appointed,

but for a period not to exceed six months from the expiration

date of the member's term.

(b) Notwithstanding the requirements of Subsection (2)(a), the executive

director shall, at the time of appointment or reappointment, adjust the

length of terms to ensure that the terms of board members are staggered

so that approximately half of the board is appointed every two years.

(c) A board member may not serve more than two consecutive terms, and a

board member who ceases to serve on a board may not serve again on that

board until after the expiration of a two-year period beginning from

that cessation of service.

(d) (i) When a vacancy occurs in the membership for any reason, the

replacement shall be appointed for the unexpired term.

(ii) After filling that term, the replacement member may be appointed

for only one additional full term.

(e) If a board member fails or refuses to fulfill the responsibilities and

duties of a board member, including the attendance at board meetings,

the executive director with the approval of the board may remove the

board member and replace the member in accordance with this section.

(3) A majority of the board members constitutes a quorum. A quorum is sufficient

authority for the board to act.

(4) A member may not receive compensation or benefits for the member's service,

but may receive per diem and travel expenses in accordance with:

(a) Section 63A-3-106;

(b) Section 63A-3-107; and

(c) rules made by the Division of Finance pursuant to Sections 63A-3-106

and 63A-3-107.

(5) Each board shall annually designate one of its members to serve as chair for a one-

year period.

(6) A board member may not be a member of the faculty of or have any financial interest

in any vocational or professional college or school which provides continuing

education to any licensee if that continuing education is required by statute

or rule.

58-1-202. Boards - Duties, functions, and responsibilities.

(1) The duties, functions and responsibilities of each board include the

following:

(a) recommending to the director appropriate rules;

(b) recommending to the director policy and budgetary matters;

(c) approving and establishing a passing score for applicant examinations;

(d) screening applicants and recommending licensing, renewal, reinstatement

and relicensure actions to the director in writing;

(e) assisting the director in establishing standards of supervision for

students or persons in training to become qualified to obtain a license

in the occupation or profession it represents; and

5

(f) acting as presiding officer in conducting hearings associated with

adjudicative proceedings and in issuing recommended orders when so

designated by the director.

(2) Subsection (1) does not apply to boards created in Title 58, Chapter 55,

Construction Trades Licensing.

58-1-203. Duties, functions, and responsibilities of division in collaboration with

board - Construction Services Commission.

(1) The following duties, functions and responsibilities of the division shall be

performed by the division with the collaboration and assistance of the

appropriate board:

(a) defining which schools, colleges, universities, departments of

universities, military educational and training programs, or other

institutions of learning are reputable and in good standing with the

division;

(b) prescribing license qualifications;

(c) prescribing rules governing applications for licenses;

(d) providing for a fair and impartial method of examination of applicants;

(e) defining unprofessional conduct, by rule, to supplement the definitions

under this chapter or other licensing chapters;

(f) establishing advisory peer committees to the board and prescribing

their scope of authority; and

(g) establishing conditions for reinstatement and renewal of licenses.

(2) Notwithstanding Subsection (1), the duties, functions, and responsibilities

of the division outlined in Subsection (1) shall, instead, be performed by

the Construction Services Commission for all purposes of Title 58, Chapter

55, Construction Trades Licensing.

Part 3 - Licensing

58-1-301. License application - Licensing procedure.

(1) (a) Each license applicant shall apply to the division in writing upon

forms available from the division. Each completed application shall

contain documentation of the particular qualifications required of the

applicant, shall include the applicant's social security number, shall

be verified by the applicant and shall be accompanied by the

appropriate fees.

(b) An applicant's social security number is a private record under

Subsection 63G-2-302(1)(h).

(2) (a) A license shall be issued to an applicant who submits a complete

application if the division determines that the applicant meets the

qualifications of licensure.

(b) A written notice of additional proceedings shall be provided to an

applicant who submits a complete application, but who has been, is, or

will be placed under investigation by the division for conduct directly

bearing upon the applicant's qualifications for licensure, if the

outcome of additional proceedings is required to determine the

division's response to the application.

(c) A written notice of denial of licensure shall be provided to an

applicant who submits a complete application if the division determines

that the applicant does not meet the qualifications of licensure.

(d) A written notice of incomplete application and conditional denial of

licensure shall be provided to an applicant who submits an incomplete

application. This notice shall advise the applicant that the

application is incomplete and that the application is denied, unless

the applicant corrects the deficiencies within the time period

specified in the notice and otherwise meets all qualifications for

licensure.

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(3) Before any person is issued a license under this title, all requirements for

that license as established under this title and by rule shall be met.

(4) If all requirements are met for the specific license, the division shall

issue the license.

58-1-301.5. Division access to Bureau of Criminal Identification records.

(1) The division shall have direct access to criminal background information

maintained by the Bureau of Criminal Identification under Title 53, Chapter

10, Part 2, Bureau of Criminal Identification, for background screening of

licensure applicants as required in:

(a) Section 58-17b-307 of Title 58, Chapter 17b, Pharmacy Practice Act;

(b) Section 58-31b-302 of Title 58, Chapter 31b, Nurse Practice Act;

(c) Section 58-47b-302 of Title 58, Chapter 47b, Massage Therapy Practice

Act;

(d) Section 58-55-302 of Title 58, Chapter 55, Utah Construction Trades

Licensing Act, as it applies to alarm companies and alarm company

agents;

(e) Section 58-63-302 of Title 58, Chapter 63, Security Personnel Licensing

Act; and

(f) Section 58-64-302 of Title 58, Chapter 64, Deception Detection

Examiners Licensing Act.

(2) The division access under Subsection (1) shall be:

(a) in accordance with Section 53-10-108; and

(b) to all convictions, pleas of nolo contendere, pleas of guilty or nolo

contendere held in abeyance, all dismissed charges, and charges without

a known disposition.

58-1-301.7. Change of information.

(1) (a) An applicant, licensee, or certificate holder shall send the division a

signed statement in the form required by the division notifying within

10 business days of any change of a mailing address.

(b) When providing a mailing address, the individual may provide a post

office box or other mail drop location.

(2) An applicant, licensee, or certificate holder is considered to have received

a notification that has been sent to the last mailing address furnished to

the division by the applicant, licensee, or certificate holder.

58-1-302. License by endorsement.

The division may issue a license without examination to a person who has been

licensed in any state, district or territory of the United States or in any foreign

country, whose education, experience and examination requirements are, or were at

the time the license was issued, equal to those of this state. Before any person

may be issued a license under this section, he shall produce satisfactory evidence

of his qualifications, identity, and good standing in his occupation or profession.

58-1-303. Temporary license.

(1) (a) The division may issue a temporary license to a person who has met all

license requirements except the passing of an examination. In this

case:

(i) the licensee shall take the next available examination; and

(ii) the temporary license automatically expires upon release of

official examination results if the applicant fails the

examination.

(b) The division may issue a temporary license to a person licensed in

another state or country who is in Utah temporarily to teach or assist

a Utah resident licensed to practice an occupation or profession under

this title.

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(c) The division may issue a temporary license to a person licensed in

another state who met the requirements for licensure in that state,

which were equal to or greater than the requirements for licensure of

this state at the time the license was obtained in the other state,

upon a finding by the division, in collaboration with the appropriate

board, that the issuance of a temporary license is necessary to or

justified by:

(i) a local or national emergency or any governmental action causing

an unusual circumstance that might be reasonably considered to

materially jeopardize the public health, safety, or welfare if a

temporary license is not issued;

(ii) a lack of necessary available services in any community or area

of the state from an occupation or profession licensed under this

title, if the lack of services might be reasonably considered to

materially jeopardize the public health, safety, or welfare if a

temporary license is not issued; or

(iii) a need to first observe an applicant for licensure in this state

in a monitored or supervised practice of the applicant's

occupation or profession before a decision is made by the

division either to grant or deny the applicant a regular license.

(2) The division may not issue a temporary license to a person who qualifies for

one under Subsection (1)(a) more than three consecutive times within the

three-year period immediately following the issuance of the first temporary

license.

(3) The division may not issue a temporary license to a person solely because

there is a competitive advantage enjoyed or a competitive disadvantage

suffered by any party caused by the absence of a licensed person, unless in

addition there is or will be a material risk presented to the public health,

safety, or welfare.

58-1-304. Restricted license.

(1) The division may issue a restricted license to an applicant for licensure,

renewal, or reinstatement of licensure if:

(a) the applicant appears to meet the qualifications for licensure, but has

engaged in unlawful, unprofessional, or other conduct bearing upon the

applicant's qualifications; and

(b) the division determines the need to observe the applicant in a

monitored or supervised practice of the applicant's occupation or

profession or to attach other reasonable restrictions upon the

applicant in order to accommodate licensure, while protecting the

public health, safety, and welfare.

(2) Issuance of a restricted license is considered a partial denial of licensure

that is subject to agency review.

58-1-305. Inactive license.

(1) The division may adopt rules permitting inactive licensure. The rules shall

specify the requirements and procedures for placing a license on inactive

status, the length of time a license may remain on inactive status, and the

requirements and procedures to activate an inactive license.

(2) Except as otherwise specified by rule, an inactive licensee has no right or

privilege to engage in the practice of the licensed occupation or profession.

58-1-306. Surrender of license.

(1) The division may, by written agreement, accept the voluntary surrender of a

license.

(2) Unless otherwise stated in the written agreement, tender and acceptance of a

voluntary surrender of a license does not foreclose the division from

8

pursuing additional disciplinary or other action authorized under this title

or in rules adopted under this title.

(3) Unless otherwise stated in the written agreement, tender and acceptance of a

voluntary surrender of a license terminates all rights and privileges

associated with the license.

(4) Unless otherwise stated in the written agreement, the surrendered rights and

privileges of licensure may be reacquired only by reapplying for licensure

and meeting the requirements for a new or reinstated license set forth under

this title or in rules adopted under this title.

(5) Unless otherwise stated in the written agreement, documentation of tender and

acceptance of a voluntary surrender of a license is a public record.

(6) Unless otherwise stated in the written agreement, when a tender and

acceptance of a voluntary surrender of a license occurs while adjudicative

proceedings are pending against the licensee for unprofessional or unlawful

conduct, the division may report the surrender of license to appropriate

state and federal agencies and licensing data banks.

58-1-307. Exemptions from licensure.

(1) Except as otherwise provided by statute or rule, the following persons may

engage in the practice of their occupation or profession, subject to the

stated circumstances and limitations, without being licensed under this

title:

(a) an individual serving in the armed forces of the United States, the

United States Public Health Service, the United States Department of

Veterans Affairs, or other federal agencies while engaged in activities

regulated under this chapter as a part of employment with that federal

agency if the individual holds a valid license to practice a regulated

occupation or profession issued by any other state or jurisdiction

recognized by the division;

(b) a student engaged in activities constituting the practice of a

regulated occupation or profession while in training in a recognized

school approved by the division to the extent the activities are

supervised by qualified faculty, staff, or designee and the activities

are a defined part of the training program;

(c) an individual engaged in an internship, residency, preceptorship,

postceptorship, fellowship, apprenticeship, or on-the-job training

program approved by the division while under the supervision of

qualified individuals;

(d) an individual residing in another state and licensed to practice a

regulated occupation or profession in that state, who is called in for

a consultation by an individual licensed in this state, and the

services provided are limited to that consultation;

(e) an individual who is invited by a recognized school, association,

society, or other body approved by the division to conduct a lecture,

clinic, or demonstration of the practice of a regulated occupation or

profession if the individual does not establish a place of business or

regularly engage in the practice of the regulated occupation or

profession in this state;

(f) an individual licensed under the laws of this state, other than under

this title, to practice or engage in an occupation or profession, while

engaged in the lawful, professional, and competent practice of that

occupation or profession;

(g) an individual licensed in a health care profession in another state who

performs that profession while attending to the immediate needs of a

patient for a reasonable period during which the patient is being

transported from outside of this state, into this state, or through

this state;

(h) an individual licensed in another state or country who is in this state

temporarily to attend to the needs of an athletic team or group, except

9

that the practitioner may only attend to the needs of the athletic team

or group, including all individuals who travel with the team or group

in any capacity except as a spectator;

(i) an individual licensed and in good standing in another state, who is in

this state:

(i) temporarily, under the invitation and control of a sponsoring

entity;

(ii) for a reason associated with a special purpose event, based upon

needs that may exceed the ability of this state to address

through its licensees, as determined by the division; and

(iii) for a limited period of time not to exceed the duration of that

event, together with any necessary preparatory and conclusionary

periods;

(j) a law enforcement officer, as defined under Section 53-13-103, who:

(i) is operating a voice stress analyzer in the course of the

officer's full-time employment with a federal, state, or local

enforcement agency;

(ii) has completed the manufacturer's training course and is certified

by the manufacturer to operate that voice stress analyzer; and

(iii) is operating the voice stress analyzer in accordance with Section

58-64-601, regarding deception detection instruments; and

(k) the spouse of an individual serving in the armed forces of the United

States while the individual is stationed within this state, provided:

(i) the spouse holds a valid license to practice a regulated

occupation or profession issued by any other state or

jurisdiction recognized by the division; and

(ii) the license is current and the spouse is in good standing in the

state of licensure.

(2) (a) A practitioner temporarily in this state who is exempted from licensure

under Subsection (1) shall comply with each requirement of the

licensing jurisdiction from which the practitioner derives authority to

practice.

(b) Violation of a limitation imposed by this section constitutes grounds

for removal of exempt status, denial of license, or other disciplinary

proceedings.

(3) An individual who is licensed under a specific chapter of this title to

practice or engage in an occupation or profession may engage in the lawful,

professional, and competent practice of that occupation or profession without

additional licensure under other chapters of this title, except as otherwise

provided by this title.

(4) Upon the declaration of a national, state, or local emergency, a public

health emergency as defined in Section 26-23b-102, or a declaration by the

President of the United States or other federal official requesting public

health-related activities, the division in collaboration with the board may:

(a) suspend the requirements for permanent or temporary licensure of

individuals who are licensed in another state for the duration of the

emergency while engaged in the scope of practice for which they are

licensed in the other state;

(b) modify, under the circumstances described in this Subsection (4) and

Subsection (5), the scope of practice restrictions under this title for

individuals who are licensed under this title as:

(i) a physician under Chapter 67, Utah Medical Practice Act, or

Chapter 68, Utah Osteopathic Medical Practice Act;

(ii) a nurse under Chapter 31b, Nurse Practice Act, or Chapter 31c,

Nurse Licensure Compact;

(iii) a certified nurse midwife under Chapter 44a, Nurse Midwife

Practice Act;

(iv) a pharmacist, pharmacy technician, or pharmacy intern under

Chapter 17b, Pharmacy Practice Act;

10

(v) a respiratory therapist under Chapter 57, Respiratory Care

Practices Act; and

(vi) a dentist and dental hygienist under Chapter 69, Dentist and

Dental Hygienist Practice Act; and

(vii) a physician assistant under Chapter 70a, Physician Assistant Act;

(c) suspend the requirements for licensure under this title and modify the

scope of practice in the circumstances described in this Subsection (4)

and Subsection (5) for medical services personnel or paramedics

required to be certified under Section 26-8a-302; and

(d) suspend requirements in Subsection 58-17b-620(3) through (6) which

require certain prescriptive procedures;

(e) exempt or modify the requirement for licensure of an individual who is

activated as a member of a medical reserve corps during a time of

emergency as provided in Section 26A-1-126; and

(f) exempt or modify the requirement for licensure of an individual who is

registered as a volunteer health practitioner as provided in Title 26,

Chapter 49, Uniform Emergency Volunteer Health Practitioners Act.

(5) Individuals exempt under Subsection (4)(c) and individuals operating under

modified scope of practice provisions under Subsection (4)(b):

(a) are exempt from licensure or subject to modified scope of practice for

the duration of the emergency;

(b) must be engaged in the distribution of medicines or medical devices in

response to the emergency or declaration; and

(c) must be employed by or volunteering for:

(i) a local or state department of health; or

(ii) a host entity as defined in Section 26-49-102.

(6) In accordance with the protocols established under Subsection (8), upon the

declaration of a national, state, or local emergency, the Department of

Health or a local health department shall coordinate with public safety

authorities as defined in Subsection 26-23b-110(1) and may:

(a) use a vaccine, antiviral, antibiotic, or other prescription medication

that is not a controlled substance to prevent or treat a disease or

condition that gave rise to, or was a consequence of, the emergency; or

(b) distribute a vaccine, antiviral, antibiotic, or other prescription

medication that is not a controlled substance:

(i) if necessary, to replenish a commercial pharmacy in the

event that the commercial pharmacy's normal source of the

vaccine, antiviral, antibiotic, or other prescription medication

is exhausted; or

(ii) for dispensing or direct administration to treat the disease or

condition that gave rise to, or was a consequence of, the

emergency by:

(A) a pharmacy;

(B) a prescribing practitioner;

(C) a licensed health care facility;

(D) a federally qualified community health clinic; or

(E) a governmental entity for use by a community more than 50

miles from a person described in Subsections (6)(b)(ii)(A)

through (D).

(7) In accordance with protocols established under Subsection (8), upon the

declaration of a national, state, or local emergency, the Department of

Health shall coordinate the distribution of medications:

(a) received from the strategic national stockpile to local health

departments; and

(b) from local health departments to emergency personnel within the local

health departments' geographic region.

(8) The Department of Health shall establish by rule, made in accordance with

Title 63G, Chapter 3, Utah Administrative Rulemaking Act, protocols for

administering, dispensing, and distributing a vaccine, an antiviral, an

antibiotic, or other prescription medication that is not a controlled

11

substance in the event of a declaration of a national, state, or local

emergency. The protocol shall establish procedures for the Department of

Health or a local health department to:

(a) coordinate the distribution of:

(i) a vaccine, an antiviral, an antibiotic, or other prescription

medication that is not a controlled substance received by the

Department of Health from the strategic national stockpile to

local health departments; and

(ii) a vaccine, an antiviral, an antibiotic, or other non-controlled

prescription medication received by a local health department to

emergency personnel within the local health department's

geographic region;

(b) authorize the dispensing, administration, or distribution of a vaccine,

an antiviral, an antibiotic, or other prescription medication that is

not a controlled substance to the contact of a patient, as defined in

Subsection 26-6-2(4), without a patient-practitioner relationship, if

the contact's condition is the same as that of the physician's patient;

and

(c) authorize the administration, distribution, or dispensing of a vaccine,

an antiviral, an antibiotic, or other non-controlled prescription

medication to an individual who:

(i) is working in a triage situation;

(ii) is receiving preventative or medical treatment in a triage

situation;

(iii) does not have coverage for the prescription in the individuals'

health insurance plan;

(iv) is involved in the delivery of medical or other emergency

services in response to the declared national, state, or local

emergency; or

(v) otherwise has a direct impact on public health.

(9) The Department of Health shall give notice to the division upon

implementation of the protocol established under Subsection (8).

58-1-308. Term of license - Expiration of license - Renewal of license - Reinstatement

of license - Application procedures.

(1) (a) Each license issued under this title shall be issued in accordance with

a two-year renewal cycle established by rule.

(b) A renewal period may be extended or shortened by as much as one year to

maintain established renewal cycles or to change an established renewal

cycle.

(2) (a) The expiration date of a license shall be shown on the license.

(b) A license that is not renewed prior to the expiration date shown on the

license automatically expires.

(c) A license automatically expires prior to the expiration date shown on

the license upon the death of a licensee who is a natural person, or

upon the dissolution of a licensee that is a partnership, corporation,

or other business entity.

(d) If the existence of a dissolved partnership, corporation, or other

business entity is reinstated prior to the expiration date shown upon

the entity's expired license issued by the division, the division

shall, upon written application, reinstate the applicant's license,

unless it finds that the applicant no longer meets the qualifications

for licensure.

(e) Expiration of licensure is not an adjudicative proceeding under Title

63G, Chapter 4, Administrative Procedures Act.

(3) (a) The division shall notify each licensee in accordance with procedures

established by rule that the licensee's license is due for renewal and

that unless an application for renewal is received by the division by

the expiration date shown on the license, together with the appropriate

12

renewal fee and documentation showing completion of or compliance with

renewal qualifications, the license will not be renewed.

(b) Examples of renewal qualifications which by statute or rule the

division may require the licensee to document completion of or

compliance with include:

(i) continuing education;

(ii) continuing competency;

(iii) quality assurance;

(iv) utilization plan and protocol;

(v) financial responsibility;

(vi) certification renewal; and

(vii) calibration of equipment.

(4) (a) (i) An application for renewal that complies with Subsection (3) is

complete.

(ii) A renewed license shall be issued to applicants who submit a

complete application, unless it is apparent to the division that

the applicant no longer meets the qualifications for continued

licensure.

(b) (i) The division may evaluate or verify documentation showing

completion of or compliance with renewal requirements on an

entire population or a random sample basis, and may be assisted

by advisory peer committees.

(ii) If necessary, the division may complete its evaluation or

verification subsequent to renewal and, if appropriate, pursue

action to suspend or revoke the license of a licensee who no

longer meets the qualifications for continued licensure.

(c) The application procedures specified in Section 58-1-301(2), apply to

renewal applications to the extent they are not in conflict with this

section.

(5) (a) Any license that is not renewed may be reinstated at any time within

two years after nonrenewal upon submission of an application for

reinstatement, payment of the renewal fee together with a reinstatement

fee determined by the department under Section 63J-1-504, and upon

submission of documentation showing completion of or compliance with

renewal qualifications.

(b) The application procedures specified in Subsection 58-1-301(2) apply to

the reinstatement applications to the extent they are not in conflict

with this section.

(c) Except as otherwise provided by rule, a license that is reinstated no

later than 120 days after it expires shall be retroactively reinstated

to the date it expired.

(6) (a) If not reinstated within two years, the holder may obtain a license

only if the holder meets requirements provided by the division by rule

or by statute for a new license.

(b) Each licensee under this title who has been active in the licensed

occupation or profession while in the full-time employ of the United

States government or under license to practice that occupation or

profession in any other state or territory of the United States may

reinstate the licensee's license without taking an examination by

submitting an application for reinstatement, paying the current annual

renewal fee and the reinstatement fee, and submitting documentation

showing completion of or compliance with any renewal qualifications at

any time within six months after reestablishing domicile within Utah or

terminating full-time government service.

58-1-309. Laws and rules examination.

In addition to qualifications for licensure or renewal of licensure enumerated in

specific practice acts under this title, the division may by rule require an

13

applicant to pass an examination of the laws and rules relevant to the occupation

or profession to ensure familiarity with these laws and rules.

Part 4 - License Denial

58-1-401. Grounds for denial of license - Disciplinary proceedings - Time limitations - Sanctions.

(1) The division shall refuse to issue a license to an applicant and shall refuse

to renew or shall revoke, suspend, restrict, place on probation, or otherwise

act upon the license of a licensee who does not meet the qualifications for

licensure under this title.

(2) The division may refuse to issue a license to an applicant and may refuse to

renew or may revoke, suspend, restrict, place on probation, issue a public

reprimand to, or otherwise act upon the license of any licensee in any of the

following cases:

(a) the applicant or licensee has engaged in unprofessional conduct, as

defined by statute or rule under this title;

(b) the applicant or licensee has engaged in unlawful conduct as defined by

statute under this title;

(c) the applicant or licensee has been determined to be mentally

incompetent for any reason by a court of competent jurisdiction; or

(d) the applicant or licensee is unable to practice the occupation or

profession with reasonable skill and safety because of illness,

drunkenness, excessive use of drugs, narcotics, chemicals, or any other

type of material, or as a result of any other mental or physical

condition, when the licensee's condition demonstrates a threat or

potential threat to the public health, safety, or welfare.

(3) Any licensee whose license to practice an occupation or profession regulated

by this title has been suspended, revoked, or restricted may apply for

reinstatement of the license at reasonable intervals and upon compliance with

any conditions imposed upon the licensee by statute, rule, or terms of the

license suspension, revocation, or restriction.

(4) The division may issue cease and desist orders to:

(a) a licensee or applicant who may be disciplined under Subsection (1) or

(2);

(b) any person who engages in or represents himself to be engaged in an

occupation or profession regulated under this title; and

(c) any person who otherwise violates this title or any rules adopted under

this title.

(5) The division may impose an administrative penalty in accordance with Section

58-1-502.

(6) (a) The division may not take disciplinary action against any person for

unprofessional or unlawful conduct under this title, unless the

division enters into a stipulated agreement or initiates an

adjudicative proceeding regarding the conduct within four years after

the conduct is reported to the division except under Subsection (6)(b).

(b) The division may not take disciplinary action against any person for

unprofessional or unlawful conduct more than ten years after the

occurrence of the conduct, unless the proceeding is in response to a

civil or criminal judgment or settlement and the proceeding is

initiated within one year following the judgment or settlement.

58-1-402. Administrative review - Special appeals boards.

(1) (a) Any applicant who has been denied a license to practice on the basis of

credentials, character, or failure to pass a required examination, or

who has been refused renewal or reinstatement of a license to practice

on the basis that the applicant does not meet qualifications for

continued licensure in any occupation or profession under the

14

jurisdiction of the division may submit a request for agency review to

the executive director within 30 days following notification of the

denial of a license or refusal to renew or reinstate a license.

(b) The executive director shall determine whether the circumstances for

denying an application for an initial license or for renewal or

reinstatement of a license would justify calling a special appeals

board under Subsection (2). The executive director's decision is not

subject to agency review.

(2) A special appeals board shall consist of three members appointed by the

executive director as follows:

(a) one member from the occupation or profession in question who is not on

the board of that occupation or profession;

(b) one member from the general public who is neither an attorney nor a

practitioner in an occupation or profession regulated by the division;

and

(c) one member who is a resident lawyer currently licensed to practice law

in this state who shall serve as chair of the special appeals board.

(3) The special appeals board shall comply with the procedures and requirements

of Title 63G Chapter 4, Administrative Procedures Act, in its proceedings.

(4) (a) Within a reasonable amount of time following the conclusion of a

hearing before a special appeals board, the board shall enter an order

based upon the record developed at the hearing. The order shall state

whether a legal basis exists for denying the application for an initial

license or for renewal or reinstatement of a license that is the

subject of the appeal. The order is not subject to further agency

review.

(b) The division or the applicant may obtain judicial review of the

decision of the special appeals board in accordance with Sections 63G-

4-401 and 63G-4-403.

(5) A member may not receive compensation or benefits for the member's service,

but may receive per diem and travel expenses in accordance with:

(a) Section 63A-3-106;

(b) Section 63A-3-107; and

(c) rules made by the Division of Finance pursuant to Sections 63A-3-106

and 63A-3-107.

(6) If an applicant under Subsection (1) is not given a special appeals board,

the applicant shall be given agency review under ordinary agency review

procedures specified by rule.

58-1-403. Minimum 90-day suspension.

A license may not be reinstated subsequent to action taken under Section 58-1-401

within 90 days after the action has been taken, unless the division in

collaboration with the appropriate board imposes other conditions.

58-1-404. Diversion - Procedure.

(1) As used in this section, "diversion" means suspending action to discipline a

licensee who is or could be charged in a Notice of Agency Action with certain

offenses within the category of unprofessional or unlawful conduct on the

condition that the licensee agrees to participate in an educational or

rehabilitation program or fulfill some other condition.

(2) (a) (i) The director may establish, as circumstances require, a diversion

advisory committee for each occupation or profession or similar

groups of occupations or professions licensed by the division.

(ii) The committees shall assist the director in the administration of

this section.

(b) (i) Each committee shall consist of at least three licensees from the

same or similar occupation or profession as the person whose

conduct is the subject of the committee's consideration.

15

(ii) The director shall appoint the members of a diversion advisory

committee from nominations submitted by the corresponding board

established for the same or similar occupation or profession

under Section 58-1-201 or from other qualified nominees developed

by or submitted to the division.

(iii) Committee members may not serve concurrently as members of the

corresponding board.

(iv) Committee members shall serve voluntarily without remuneration.

(v) The director may:

(A) dissolve any diversion advisory committee;

(B) remove or request the replacement of any member of a

committee; and

(C) establish any procedure that is necessary and proper for a

committee's administration.

(3) The director may, after consultation with the appropriate diversion advisory

committee and by written agreement with the licensee, divert the licensee to

a diversion program:

(a) at any time after receipt by the division of a complaint against the

licensee when no adjudicative proceeding has been commenced;

(b) at any time prior to the conclusion of a hearing under Section 63G-4-

206 when an adjudicative proceeding has been commenced against the

licensee; or

(c) after a self-referral by a licensee who is not the subject of a current

investigation, complaint, or adjudicative proceeding.

(4) (a) In accordance with Title 63G, Chapter 3, Utah Administrative Rulemaking

Act, the division shall define by rule the particular offenses with the

category of unprofessional or unlawful conduct which may be subject to

diversion.

(b) A licensee may be eligible for a diversion program only once for the

same or similar offense, whether the diversion program was in this

state or another jurisdiction, and is not eligible if previously

disciplined by the division, by a licensing agency of another state, or

by a federal government agency for the same or similar offense.

(c) The term of a diversion agreement shall be five years or less, but may

be extended for an additional period of time as agreed to by the

parties in writing.

(d) A decision by the director not to divert a licensee is not subject to

appeal or judicial review.

(5) A licensee may be represented by counsel:

(a) during the negotiations for diversion;

(b) at the time of the execution of the diversion agreement; and

(c) at any hearing before the director relating to a diversion program.

(6) (a) As used in this section, "diversion agreement" means a written

agreement between the division, through its director, and the licensee,

which specifies formal terms and conditions the licensee must fulfill

in order to comply with the diversion program.

(b) (i) A diversion agreement shall contain a full detailed statement of

the requirements agreed to by the licensee and a full detailed

stipulation of the facts upon which the diversion agreement is

premised.

(ii) The facts stipulated in the diversion agreement shall constitute

binding admissions of the licensee:

(A) in any proceeding under Subsection (6)(c) or (6)(d) to

terminate the diversion agreement and impose disciplinary

sanctions against the licensee; and

(B) in any disciplinary proceeding based on unprofessional or

unlawful conduct that is not the basis of the diversion

agreement.

(c) The diversion agreement shall provide that if the licensee makes an

intentional material misrepresentation of fact in the stipulation of

16

facts contained in the diversion agreement, the director shall initiate

the procedures set forth in Subsection (13) to terminate the diversion

agreement and issue an order of license revocation.

(d) (i) The diversion agreement shall provide that if the licensee fails

to comply with its terms, the director shall initiate the

procedures set forth in Subsection (14) to terminate the

diversion agreement and issue an order of license suspension,

which shall be stayed in favor of an order of probation having

the same terms as those which comprised the diversion agreement.

(ii) The division may waive and not include as probationary

requirements any terms of the diversion agreement it does not

consider necessary to protect the public.

(iii) The term of the order of probation shall be as provided in

Subsection (14)(c)(ii).

(e) The division director may not approve a diversion agreement unless the

licensee, as part of the diversion agreement:

(i) knowingly and intelligently waives the right to a hearing under

Title 63G, Chapter 4, Administrative Procedures Act, for the

conduct upon which the diversion agreement was premised;

(ii) agrees to be subject to the procedures and remedies set forth in

this section;

(iii) acknowledges an understanding of the consequences of making an

intentional misrepresentation of fact in the stipulation of facts

contained in the diversion agreement; and

(iv) acknowledges an understanding of the consequences of failing to

comply with the terms of the diversion agreement.

(7) (a) If the division and the licensee enter into a diversion agreement after

the division has commenced an adjudicative proceeding against the

licensee, the director shall stay that proceeding pending completion of

the diversion agreement.

(b) The order staying the adjudicative proceeding shall be filed in that

proceeding and may reference the diversion agreement.

(8) (a) Upon successful completion of a diversion agreement, the director shall

dismiss any charges under the director's jurisdiction of unprofessional

or unlawful conduct that were filed against the licensee.

(b) Whether or not an adjudicative proceeding had been commenced against

the licensee, the division may not thereafter subject the licensee to

disciplinary action for the conduct which formed the basis of the

completed diversion agreement.

(c) Neither the execution of a diversion agreement nor the dismissal of

filed charges constitute disciplinary action, and no report of either

maybe made to disciplinary databases.

(d) The division may consider the completion of a diversion program and the

contents of the diversion agreement in determining the appropriate

disciplinary action if the licensee is charged in the future with the

same or similar conduct.

(e) The order of dismissal shall be filed in the adjudicative proceeding in

which the misconduct was charged and may reference the diversion

agreement.

(9) (a) Acceptance of the licensee into diversion does not preclude the

division from investigating or continuing to investigate the licensee

for any unlawful or unprofessional conduct committed before, during, or

after participation in the diversion program.

(b) Acceptance of the licensee into diversion does not preclude the

division from taking disciplinary action or continuing to take

disciplinary action against the licensee for unlawful or unprofessional

conduct committed before, during, or after participation in the

diversion program, except for that conduct which formed the basis for

the diversion agreement.

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(c) Any licensee terminated from the diversion program for failure to

comply with the diversion agreement is subject to disciplinary action

by the division for acts committed before, during, and after

participation in the diversion program, including violations identified

in the diversion agreement.

(10) The classification, retention, and disclosure of records relating to a

licensee's participation in the diversion program is governed by Title 63G,

Chapter 2, Government Records Access and Management Act, except that any

provision in the diversion agreement which addresses access to or release of

diversion records regarding the licensee shall govern the access to and

release of those records.

(11) Notwithstanding any other provision of this section, the fact that the

licensee completed a diversion program and the contents of the diversion

agreement itself may be considered by the division in determining the

appropriate disciplinary action if the licensee is charged in the future with

the same or similar conduct.

(12) Meetings regarding the diversion program are not subject to Title 52, Chapter

4, Open and Public Meetings Act.

(13) (a) If, during the course of the diversion agreement, information is

brought to the attention of the director that the licensee made an

intentional material misrepresentation of fact in the stipulation of

facts contained in the diversion agreement, the director shall cause to

be served upon the licensee an order to show cause specifying the

information relied upon by the director and setting a time and place

for hearing to determine whether or not the licensee made the

intentional material misrepresentation of fact and whether the

agreement should be terminated on that ground.

(b) Proceedings to terminate a diversion agreement on the grounds that the

licensee made an intentional material misrepresentation of fact in the

stipulation of facts contained in the diversion agreement and to issue

an order of license revocation shall comply with Title 63G, Chapter 4,

Administrative Procedures Act, except as follows:

(i) the notice of agency action shall be in the form of an order to

show cause, which shall contain all of the information specified

in Subsection 63G-4-201(2), except a statement that a written

response to the order to show cause is required;

(ii) no written response to the order to show cause is required;

(iii) discovery is prohibited, but the division may issue subpoenas or

other orders to compel production of necessary evidence on behalf

of either party and all parties shall have access to information

contained in the division's diversion file to the extent

permitted by law;

(iv) the hearing shall be held only after timely notice to all

parties; and

(v) any agency review or reconsideration of an order terminating a

diversion agreement or of an order of license revocation pursuant

to this Subsection (13) shall be limited to the division

director's findings of fact, conclusions of law, and order which

arose out of the order to show cause proceeding.

(c) Upon finding the licensee made an intentional material

misrepresentation of fact in the stipulation of facts contained in the

diversion agreement and that terminating the agreement is in the best

interest of the public, and issuing an order to that effect, the

director shall issue an order of license revocation, revoking the

licensee's professional license.

(d) The order terminating the diversion agreement and the order of license

revocation shall include findings of fact and conclusions of law as

determined by the director following the hearing or as otherwise

stipulated and agreed to by the parties.

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(e) If the diversion agreement being terminated was entered into after the

division had commenced an adjudicative proceeding against the licensee,

that adjudicative proceeding shall be considered to be merged into the

order of license revocation and it may not constitute a basis for any

separate disciplinary action against the licensee.

(f) The order terminating the diversion agreement and the order of license

revocation shall notify the licensee of the right to request agency

review or reconsideration.

(14) (a) If, during the course of the diversion agreement, information is

brought to the attention of the director that the licensee has violated

the diversion agreement and if it appears in the best interest of the

public to proceed with charges, the director, after consultation with

the diversion advisory committee, shall cause to be served upon the

licensee an order to show cause specifying the facts relied upon by the

director and setting a time and place for hearing to determine whether

or not the licensee has violated the diversion agreement and whether

the agreement should be terminated.

(b) Proceedings to terminate a diversion agreement and to issue an order of

license suspension and probation, and proceedings to terminate the

probation and lift the stay of a license suspension, shall comply with

Title 63G, Chapter 4, Administrative Procedures Act, except as follows:

(i) the notice of agency action shall be in the form of an order to

show cause, which shall contain all of the information specified

in Subsection 63G-4-201(2), except a statement that a written

response to the order to show cause is required;

(ii) no written response to the order to show cause shall be required;

(iii) discovery is prohibited, but the division may issue subpoenas or

other orders to compel production of necessary evidence on behalf

of either party and all parties shall have access to information

contained in the division's diversion file to the extent

permitted by law;

(iv) the hearing shall be held only after timely notice to all

parties; and

(v) any agency review or reconsideration of an order of license

suspension and probation pursuant to this Subsection (14) shall

be limited to the division director's findings of fact,

conclusions of law, and order which arose out of the order to

show cause proceeding.

(c) (i) Upon finding the licensee has violated the diversion agreement

and that terminating the agreement is in the best interest of the

public, and issuing an order to that effect, the director shall

issue an order of license suspension, suspending the licensee's

professional license, but shall stay the suspension in favor of

an order of probation, consisting of the same terms as those

which comprised the diversion agreement.

(ii) The period of probation shall be the time period which remained

under the diversion agreement, or five years from the date of the

order of license suspension and probation, whichever is longer,

unless otherwise agreed by the parties.

(iii) The period of probation is tolled during any time in which the

licensee does not have an active license in the state.

(d) (i) The order terminating the diversion agreement and the order of

license suspension and probation shall include findings of fact

and conclusions of law as determined by the director following

the hearing or as otherwise stipulated and agreed to by the

parties.

(ii) The findings of fact may include those facts to which the

licensee stipulated in the diversion agreement and any additional

facts as the director may determine in the course of the hearing.

19

(e) If the diversion agreement being terminated was entered into after the

division had commenced an adjudicative proceeding against the licensee,

that adjudicative proceeding shall be considered to be merged into the

order of license suspension and probation and it may not constitute a

basis for any separate disciplinary action against the licensee.

(f) The order terminating the diversion agreement and the order of license

suspension and probation shall notify the licensee of the right to

request agency review or reconsideration.

(g) (i) The terms and conditions of the order of license suspension and

probation may be amended by order of the director, pursuant to

motion or stipulation of the parties.

(ii) The order of the director on the motion shall not be subject to

agency review, but is subject to agency reconsideration under

Section 63G-4-302.

(h) (i) If, during the course of probation, the director has reason to

believe the licensee has violated the order of suspension and

probation, the director shall cause to be served upon the

licensee an order to show cause why the probation should not be

terminated and the stay of suspension lifted.

(ii) The order to show cause shall specify the facts relied upon by

the director and shall set a time and place for hearing before

the director to determine whether or not the licensee has

violated the order of suspension and probation and whether the

order should be terminated and the stay of suspension lifted.

(15) (a) Nothing in this section precludes the division from issuing an

emergency order pursuant to Section 63G-4-502.

(b) If the division issues an emergency order against a licensee who is

subject to a diversion agreement with the division, that diversion

agreement shall be immediately and automatically terminated upon the

issuance of the emergency order, without compliance with the provisions

of Title 63G, Chapter 4, Administrative Procedures Act.

(c) (i) A licensee whose diversion agreement has been terminated

pursuant to Subsection (15)(b) is entitled, upon request,

to a posttermination hearing to challenge the termination

of the diversion agreement.

(ii) The request shall be considered a request for agency action

and shall comply with the requirements of Subsection 63G-4-

201(3).

(iii) The division shall uphold the termination of the diversion

agreement if it finds that:

(A) the licensee violated the diversion agreement; and

(B) it is in the best interest of the public to terminate

the diversion agreement.

(16) The administrative statute of limitations for taking disciplinary

action described in Subsection 58-1-401(6) shall be tolled during a

diversion program.

58-1-405. Provisions of volunteer health or veterinary services - Division authority.

In accordance with Section 26-49-205, the division may pursue actions against

a volunteer health practitioner operating under Title 26, Chapter 49, Uniform

Emergency Volunteer Health Practitioners Act.

Part 5 - Unlawful/Unprofessional Conduct

58-1-501. Unlawful and unprofessional conduct.

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(1) "Unlawful conduct" means conduct, by any person, that is defined as unlawful

under this title and includes:

(a) practicing or engaging in, representing oneself to be practicing or

engaging in, or attempting to practice or engage in any occupation or

profession requiring licensure under this title if the person is:

(i) not licensed to do so or not exempted from licensure under this

title; or

(ii) restricted from doing so by a suspended, revoked, restricted,

temporary, probationary, or inactive license;

(b) impersonating another licensee or practicing an occupation or

profession under a false or assumed name, except as permitted by law;

(c) knowingly employing any other person to practice or engage in or

attempt to practice or engage in any occupation or profession licensed

under this title if the employee is not licensed to do so under this

title;

(d) knowingly permitting the person's authority to practice or engage in

any occupation or profession licensed under this title to be used by

another, except as permitted by law;

(e) obtaining a passing score on a licensure examination, applying for or

obtaining a license, or otherwise dealing with the division or a

licensing board through the use of fraud, forgery, or intentional

deception, misrepresentation, misstatement, or omission; or

(f) (i) issuing, or aiding and abetting in the issuance of, an order or

prescription for a drug or device to a person located in this

state:

(A) without prescriptive authority conferred by a license

issued under this title, or by an exemption to licensure

under this title; or

(B) with prescriptive authority conferred by an exception under

this title or a multistate practice privilege recognized

under this title, if the prescription was issued without

first obtaining information, in the usual course of

professional practice, that is sufficient to establish a

diagnosis, to identify underlying conditions, and to

identify contraindications to the proposed treatment; and

(ii) Subsection (1)(f)(i) does not apply to treatment rendered in an

emergency, on-call or cross coverage situation, provided that the

person who issues the prescription has prescriptive authority

conferred by a license under this title, or is exempt from

licensure under this title.

(2) "Unprofessional conduct" means conduct, by a licensee or applicant, that is

defined as unprofessional conduct under this title or under any rule adopted

under this title and includes:

(a) violating, or aiding or abetting any other person to violate, any

statute, rule, or order regulating an occupation or profession under

this title;

(b) violating, or aiding or abetting any other person to violate, any

generally accepted professional or ethical standard applicable to an

occupation or profession regulated under this title;

(c) engaging in conduct that results in conviction, a plea of nolo

contendere, or a plea of guilty or nolo contendere which is held in

abeyance pending the successful completion of probation with respect to

a crime of moral turpitude or any other crime that, when considered

with the functions and duties of the occupation or profession for which

the license was issued or is to be issued, bears a reasonable

relationship to the licensee's or applicant's ability to safely or

competently practice the occupation or profession;

(d) engaging in conduct that results in disciplinary action, including

reprimand, censure, diversion, probation, suspension, or revocation, by

any other licensing or regulatory authority having jurisdiction over

21

the licensee or applicant in the same occupation or profession if the

conduct would, in this state, constitute grounds for denial of

licensure or disciplinary proceedings under Section 58-1-401;

(e) engaging in conduct, including the use of intoxicants, drugs,

narcotics, or similar chemicals, to the extent that the conduct does,

or might reasonably be considered to, impair the ability of the

licensee or applicant to safely engage in the occupation or profession;

(f) practicing or attempting to practice an occupation or profession

regulated under this title despite being physically or mentally unfit

to do so;

(g) practicing or attempting to practice an occupation or profession

regulated under this title through gross incompetence, gross

negligence, or a pattern of incompetency or negligence;

(h) practicing or attempting to practice an occupation or profession

requiring licensure under this title by any form of action or

communication which is false, misleading, deceptive, or fraudulent;

(i) practicing or attempting to practice an occupation or profession

regulated under this title beyond the scope of the licensee's

competency, abilities, or education;

(j) practicing or attempting to practice an occupation or profession

regulated under this title beyond the scope of the licensee's license;

(k) verbally, physically, mentally, or sexually abusing or exploiting any

person through conduct connected with the licensee's practice under

this title or otherwise facilitated by the licensee's license;

(l) acting as a supervisor without meeting the qualification requirements

for that position that are defined by statute or rule;

(m) issuing, or aiding and abetting in the issuance of, an order or

prescription for a drug or device:

(i) without first obtaining information in the usual course of

professional practice, that is sufficient to establish a

diagnosis, to identify conditions, and to identify

contraindications to the proposed treatment; or

(ii) with prescriptive authority conferred by an exception issued

under this title, or a multi-state practice privilege recognized

under this title, if the prescription was issued without first

obtaining information, in the usual course of professional

practice, that is sufficient to establish a diagnosis, to

identify underlying conditions, and to identify contraindications

to the proposed treatment; or

(n) violating a provision of Section 58-1-501.5.

58-1-501.3. Health professional prescribing exceptions for expedited partner therapy for sexually transmitted diseases.

(1) For purposes of this section:

(a) "Drug to treat a sexually transmitted disease" means a drug:

(i) as defined in Section 58-17b-102; and

(ii) that is:

(A) an antibiotic; and

(B) prescribed in accordance with guidelines from the Centers

for Disease Control and Prevention for patient delivered

expedited partner therapy in the management of sexually

transmitted disease.

(b) "Partner" means a person:

(i) with whom a practitioner does not have a bonafide practitioner-

patient relationship; and

(ii) who is identified as, or claims to be a sexual partner of a

patient.

(c) "Patient" means a person who:

22

(i) has a sexually transmitted disease; and

(ii) has a bonafide practitioner-patient relationship with a

practitioner.

(d) "Sexually transmitted disease" means:

(i) gonorrhea; or

(ii) chlamydia.

(2) This section does not require a practitioner or a licensee under this chapter

to prescribe or dispense a drug to treat a sexually transmitted disease for

patient delivered expedited partner therapy. A practitioner's or licensee's

decision to use expedited partner therapy as allowed by this section is

voluntary.

(3) Notwithstanding Sections 58-1-501, 58-17b-501, and 58-17b-502, it is not

unlawful conduct or unprofessional conduct, and it does not violate the

provisions of this chapter if:

(a) a practitioner, in accordance with this Subsection (3):

(i) issues a prescription for a drug to treat a sexually transmitted

disease to a partner by:

(A) writing "partner of (patient name)" on the prescription

order; and

(B) giving the partner's prescription to the patient for

subsequent use by the partner; or

(ii) notwithstanding Section 58-17b-610, dispenses a drug sample to

treat a sexually transmitted disease to the patient for the

subsequent use of the partner; or

(b) a pharmacist, in accordance with this Subsection (3), dispenses a

prescription drug for the treatment of a sexually transmitted disease

to:

(i) a person who:

(A) claims to be a partner; and

(B) presents a prescription for the drug to the pharmacist

which is written for the unnamed partner of a named

patient;

(ii) the patient for the subsequent use by the unnamed partner; or

(iii) an agent of the patient or partner.

(4) (a) For purposes of Subsection (3), and notwithstanding Section 58-17b-602:

(i) the partner does not have to be identified on the prescription

order by information that would disclose the identity of the

partner; and

(ii) when dispensing a drug to treat a sexually transmitted disease

directly to the partner, the patient's identifying information

may, but does not need to, be included on the partner's drug

label.

(b) Information provided by a pharmacist to a patient or the patient's

agent for subsequent use by a partner satisfies the requirements of

patient counseling for both the patient and the partner under Section

58-17b-613.

(5) (a) The Legislature finds that the prevention and treatment of sexually

transmitted diseases in the state is a compelling public health issue.

(b) A practitioner or licensee under this chapter is not liable for a

medical malpractice action if the use of expedited partner therapy is

in compliance with this section, except for those acts which are

grossly negligent or willful and wanton.

58-1-501.5. Anatomic pathology services - Billing violations.

(1) As used in this section, the following definitions apply:

(a) (i) "Anatomic pathology services" including "technical or

professional component of anatomic pathology services" means:

(A) histopathology or surgical pathology, meaning the gross

examination of, histologic processing of, or microscopic

23

examination of human organ tissue performed by a physician

or under the supervision of a physician;

(B) cytopathology, meaning the examination of human cells, from

fluids, aspirates, washings, brushings, or smears,

including the pap test examination performed by a physician

or under the supervision of a physician;

(C) hematology, meaning the microscopic evaluation of human

bone marrow aspirates and biopsies performed by a physician

or under the supervision of a physician and peripheral

human blood smears when the attending or treating physician

or other practitioner of the healing arts or a technologist

requests that a blood smear be reviewed by a pathologist;

(D) subcellular pathology and molecular pathology; and

(E) blood bank services performed by a pathologist.

(ii) "Anatomic pathology services" including "technical or

professional component of anatomic pathology services" does not

include the initial collection or packaging of a sample for

transport.

(b) "Clinical laboratory" or "laboratory" means a facility for the

biological, microbiological, serological, chemical,

immunohematological, hematological, biophysical, cytological,

pathological, or other examination of materials derived from the human

body for the purpose of providing information for the diagnosis,

prevention, or treatment of any disease or impairment of human beings

or the assessment of the health of human beings.

(c) "Health care facility" has the meaning provided in Section 26-21-2.

(d) "Health care provider" includes:

(i) an advanced practice registered nurse under Chapter 31b, Nurse

Practice Act;

(ii) a chiropractic physician licensed under Chapter 73, Chiropractic

Physician Practice Act;

(iii) a dentist licensed under Chapter 69, Dentist and Dental Hygienist

Practice Act;

(iv) a nurse midwife licensed under Chapter 44a, Nurse Midwife

Practice Act;

(v) an optometrist licensed under Chapter 16a, Utah Optometry

Practice Act;

(vi) an osteopathic physician and surgeon licensed under Chapter 68,

Utah Osteopathic Medical Practice Act;

(vii) a podiatric physician licensed under Chapter 5a, Podiatric

Physician Licensing Act;

(viii) a physician and surgeon licensed under Chapter 67, Utah Medical

Practice Act; and

(ix) a physician assistant licensed under Chapter 70a, Physician

Assistant Act.

(e) "Insurer" includes:

(i) any entity offering accident and health insurance as defined in

Section 31A-1-301;

(ii) workers' compensation benefits;

(iii) a health maintenance organization; or

(iv) any self-insurance, as defined in Section 31A-1-301, that offers

health care insurance or benefits.

(2) (a) A health care provider who orders anatomic pathology services for a

patient from an independent physician or laboratory may not directly or

indirectly mark up, charge a commission, or make a profit on the

anatomic pathology service provided by the independent physician or

laboratory.

(b) Nothing in Subsection (2)(a):

(i) restricts the ability of a health care provider, who has not

performed or supervised either the technical or professional

24

component of the anatomic pathology service, to obtain payment

for services related solely to the collection and packaging of a

sample and administrative billing costs; or

(ii) restricts the ability of the lab function in the Department of

Health to bill for services.

(3) A health care provider when billing a patient directly for anatomic pathology

services provided by an independent physician or laboratory shall furnish an

itemized bill which conforms with the billing practices of the American

Medical Association that conspicuously discloses the charge for each anatomic

pathology service, physician or laboratory name, and address for each

anatomic pathology service rendered to the patient by the physician or

laboratory that performed the anatomic pathology service.

(4) The disclosure to be made under Subsection (3) shall not be required when the

anatomic pathology service is being ordered by a hospital, a laboratory

performing either the professional or technical component of the service, or

a physician performing either the professional or technical component of the

service, a public health clinic, or a state or federal agency.

(5) Failure to comply with the requirements of this section shall be considered

to be unprofessional conduct.

58-1-501.6. Health care provider advertisements and disclosure - Unprofessional conduct.

For purposes of this section:

(1) (a) "Advertisement" includes:

(i) billboards;

(ii) written documents such as:

(A) brochures;

(B) pamphlets;

(C) direct mail solicitations;

(D) radio, television, and telephone solicitation scripts; and

(E) telephone directories;

(iii) media, including television, radio, and Internet websites; and

(iv) any other means of promotion intended to directly or indirectly

induce a person to enter into an agreement for services with a

health care provider.

(b) "Advertisement" does not include materials that provide information

about health care provider networks established by health insurance

carriers.

(2) "Health care provider" means a natural person who is:

(a) defined as a health care provider in Section 78B-3-403; and

(b) is licensed under this title.

(3) (a) This section does not provide authority for a health care provider to

advertise the services offered by the health care provider.

(b) If a health care provider's licensing authority and professional ethics

permit the health care provider to advertise, the provisions of this

section apply to any advertisement for the health care provider's

services, on or after July 1, 2011.

(4) An advertisement for a health care provider's services that includes the

health care provider's name shall identify the license type, as used by the

division, under which the health are provider is practicing.

(5) (a) A physician licensed under Chapter 67, Utah Medical Practice Act, may

comply with the requirements of this section by using any one of the

designations in the definitions of "practice of medicine" in Section

58-67-102.

(b) A physician licensed under Chapter 68, Utah Osteopathic Medical

Practice Act, may comply with this section by using any of the

designations in the definition of "practice of osteopathic medicine" in

Section 58-68-102.

(6) It is unprofessional conduct if a health care provider violates this section.

25

58-1-502. Unlawful conduct - Penalty.

(1) Unless otherwise specified in this title, a person who violates the unlawful

conduct provisions defined in this title is guilty of a class A misdemeanor.

(2) (a) If upon inspection or investigation, the division concludes that a

person has violated Subsection 58-1-501(1)(a) or (c) or any rule or

order issued with respect to those subsections and that disciplinary

action is appropriate, the director or the director's designee form

within the division shall promptly:

(i) issue a citation to the person according to this section and any

pertinent rules;

(ii) attempt to negotiate a stipulated settlement; or

(iii) notify the person to appear before an adjudicative proceeding

conducted under Title 63G, Chapter 4, Administrative Procedures

Act.

(b) (i) The division may assess a fine under this Subsection (2) against

a person who violates Subsection 58-1-501(1)(a) or (c) or any

rule or order issued with respect to those subsections as

evidenced by:

(A) an uncontested citation;

(B) a stipulated settlement; or

(C) a finding of a violation in an adjudicative proceeding.

(ii) The division may, in addition to or in lieu of a fine under

Subsection (2)(b)(i), order the person to cease and desist from

violating Subsection 58-1-501(1)(a) or (c) or any rule or order

issued with respect to this section.

(c) Except for a cease and desist order, the division may not assess the

licensure sanctions cited in Section 58-1-401 through a citation.

(d) A citation shall:

(i) be in writing;

(ii) describe with particularity the nature of the violation,

including a reference to the provision of the chapter, rule, or

order alleged to have been violated;

(iii) clearly state that the recipient must notify the division in

writing within 20 calendar days of service of the citation if the

recipient wishes to contest the citation at a hearing conducted

under Title 63G, Chapter 4, Administrative Procedures Act; and

(iv) clearly explain the consequences of failure to timely contest the

citation or to make payment of any fine assessed by the citation

within the time specified in the citation.

(e) The division may issue a notice in lieu of a citation.

(f) (i) If within 20 calendar days from the service of the citation, the

person to whom the citation was issued fails to request a hearing

to contest the citation, the citation becomes the final order of

the division and is not subject to further agency review.

(ii) The period to contest a citation may be extended by the division

for cause.

(g) The division may refuse to issue or renew, suspend, revoked, or place

on probation the license of a licensee who fails to comply with a

citation after it becomes final.

(h) The failure of an applicant for licensure to comply with a citation

after it becomes final is a ground for denial of license.

(i) The division may not issue a citation under this section after the

expiration of six months following the occurrence of a violation.

(j) The director or the director's designee shall assess fines according to

the following:

(i) for a first offense handled pursuant to Subsection (2)(a), a fine

of up to $1,000;

(ii) for a second offense handled pursuant to Subsection (2)(a), a

fine of up to $2,000; and

26

(iii) for any subsequent offense handled pursuant to Subsection (2)(a),

a fine of up to $2,000 for each day of continued offense.

(3) (a) An action for a first or second offense which has not yet resulted in a

final order of the division may not preclude initiation of any

subsequent action for a second or subsequent offense during the

pendency of any preceding action.

(b) The final order on a subsequent action is considered a second or

subsequent offense, respectively, provided the preceding action

resulted in a first or second offense, respectively.

(4) (a) The director may collect a penalty that is not paid by:

(i) either referring the matter to a collection agency; or

(ii) bringing an action in the district court of the county in which

the person against whom the penalty is imposed resides or the in

the county where the office of the director is located.

(b) Any county attorney or the attorney general of the state shall provide

legal assistance and advice to the director in an action to collect the

penalty.

(c) A court may award reasonable attorney fees and costs to the division in

an action brought by the division to enforce the provisions of this

section.

58-1-503. Maximum civil penalty for violation of court order.

(1) If any written order issued under this title or if an injunction or temporary

restraining order issued by a court of competent jurisdiction relating to

this title is violated, the court may impose a civil penalty of not more than

$2,000 for each day the written order, injunction, or temporary restraining

order is violated, if the person in violation has received notice of the

written order, injunction, or temporary restraining order.

(2) All penalties ordered under this section shall be deposited into the General

Fund.

58-1-504. Court-ordered discipline.

The division shall promptly withhold, suspend, restrict, or reinstate the use of a

license issued under this title if so ordered by a court.

27

DIVISION OF OCCUPATIONAL

AND PROFESSIONAL LICENSING ACT

Title 58, Chapter 1

Utah Code Annotated 1953

As Amended by

Session Laws of Utah 2011

Issued May 10, 2011

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R156. Commerce, Occupational and Professional Licensing. R156-1. General Rule of the Division of Occupational and Professional Licensing. R156-1-101. Title. This rule is known as the "General Rule of the Division of Occupational and Professional Licensing." R156-1-102. Definitions. In addition to the definitions in Title 58, as used in Title 58 or this rule: (1) "Active and in good standing" means a licensure status which allows the licensee full privileges to engage in the practice of the occupation or profession subject to the scope of the licensee's license classification. (2) "Aggravating circumstances" means any consideration or factors that may justify an increase in the severity of an action to be imposed upon an applicant or licensee. Aggravating circumstances include: (a) prior record of disciplinary action, unlawful conduct, or unprofessional conduct; (b) dishonest or selfish motive; (c) pattern of misconduct; (d) multiple offenses; (e) obstruction of the disciplinary process by intentionally failing to comply with rules or orders of the Division; (f) submission of false evidence, false statements or other deceptive practices during the disciplinary process including creating, destroying or altering records after an investigation has begun; (g) refusal to acknowledge the wrongful nature of the misconduct involved, either to the client or to the Division; (h) vulnerability of the victim; (i) lack of good faith to make restitution or to rectify the consequences of the misconduct involved; (j) illegal conduct, including the use of controlled substances; and (k) intimidation or threats of withholding clients' records or other detrimental consequences if the client reports or testifies regarding the unprofessional or unlawful conduct. (3) "Cancel" or "cancellation" means nondisciplinary action by the Division to rescind, repeal, annul, or void a license issued in error. Such action includes rescinding a license issued to an applicant whose payment of the required application fee is dishonored when presented for payment, or who has been issued a conditional license pending a criminal background check and the check cannot be completed due to the applicant's failure to resolve an outstanding warrant or to submit acceptable fingerprint cards. (4) "Charges" means the acts or omissions alleged to constitute either unprofessional or unlawful conduct or both by a licensee, which serve as the basis to consider a licensee for inclusion in the diversion program authorized in Section 58-1-404. (5) "Denial of licensure" means action by the Division refusing to issue a license to an applicant for initial licensure, renewal of licensure, reinstatement of licensure or relicensure. (6)(a) "Disciplinary action" means adverse licensure action by the Division under the authority of Subsections 58-1-401(2)(a) through (2)(b). (b) "Disciplinary action", as used in Subsection 58-1-401(5), shall not be construed to mean an adverse licensure action taken in response to an application for licensure. Rather, as used in Subsection 58-1-401(5), it shall be construed to mean an adverse action initiated by the Division. (7) "Diversion agreement" means a formal written agreement between a licensee, the Division, and a diversion committee, outlining the terms and conditions with which a licensee must comply as a condition of entering in and remaining under the diversion program authorized in Section 58-1-404. (8) "Diversion committees" mean diversion advisory committees authorized by Subsection 58-1-404(2)(a)(i) and created under Subsection R156-1-404a.

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(9) "Duplicate license" means a license reissued to replace a license which has been lost, stolen, or mutilated. (10) "Emergency review committees" mean emergency adjudicative proceedings review committees created by the Division under the authority of Subsection 58-1-108(2). (11) "Expire" or "expiration" means the automatic termination of a license which occurs: (a) at the expiration date shown upon a license if the licensee fails to renew the license before the expiration date; or (b) prior to the expiration date shown on the license: (i) upon the death of a licensee who is a natural person; (ii) upon the dissolution of a licensee who is a partnership, corporation, or other business entity; or (iii) upon the issuance of a new license which supersedes an old license, including a license which: (A) replaces a temporary license; (B) replaces a student or other interim license which is limited to one or more renewals or other renewal limitation; or (C) is issued to a licensee in an upgraded classification permitting the licensee to engage in a broader scope of practice in the licensed occupation or profession. (12) "Inactive" or "inactivation" means action by the Division to place a license on inactive status in accordance with Sections 58-1-305 and R156-1-305. (13) "Investigative subpoena authority" means, except as otherwise specified in writing by the director, the Division regulatory and compliance officer, or if the Division regulatory and compliance officer is unable to so serve for any reason, a Department administrative law judge, or if both the Division regulatory and compliance officer and a Department administrative law judge are unable to so serve for any reason, a bureau manager designated by the director in writing. (14) "License" means a right or privilege to engage in the practice of a regulated occupation or profession as a licensee. (15) "Limit" or "limitation" means nondisciplinary action placing either terms and conditions or restrictions or both upon a license: (a) issued to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure; or (b) issued to a licensee in place of the licensee's current license or disciplinary status. (16) "Mitigating circumstances" means any consideration or factors that may justify a reduction in the severity of an action to be imposed upon an applicant or licensee. (a) Mitigating circumstances include: (i) absence of prior record of disciplinary action, unlawful conduct or unprofessional conduct; (ii) personal, mental or emotional problems provided such problems have not posed a risk to the health, safety or welfare of the public or clients served such as drug or alcohol abuse while engaged in work situations or similar situations where the licensee or applicant should know that they should refrain from engaging in activities that may pose such a risk; (iii) timely and good faith effort to make restitution or rectify the consequences of the misconduct involved; (iv) full and free disclosure to the client or Division prior to the discovery of any misconduct; (v) inexperience in the practice of the occupation and profession provided such inexperience is not the result of failure to obtain appropriate education or consultation that the applicant or licensee should have known they should obtain prior to beginning work on a particular matter; (vi) imposition of other penalties or sanctions if the other penalties and sanctions have alleviated threats to the public health, safety, and welfare; and (viii) remorse. (b) The following factors should not be considered as mitigating circumstances: (i) forced or compelled restitution;

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(ii) withdrawal of complaint by client or other affected persons; (iii) resignation prior to disciplinary proceedings; (iv) failure of injured client to complain; and (v) complainant's recommendation as to sanction. (17) "Nondisciplinary action" means adverse licensure action by the Division under the authority of Subsections 58-1-401(1) or 58-1-401(2)(c) through (2)(d). (18) "Peer committees" mean advisory peer committees to boards created by the legislature in Title 58 or by the Division under the authority of Subsection 58-1-203(1)(f). (19) "Probation" means disciplinary action placing terms and conditions upon a license; (a) issued to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure; or (b) issued to a licensee in place of the licensee's current license or disciplinary status. (20) "Public reprimand" means disciplinary action to formally reprove or censure a licensee for unprofessional or unlawful conduct, with the documentation of the action being classified as a public record. (21) "Regulatory authority" as used in Subsection 58-1-501(2)(d) means any governmental entity who licenses, certifies, registers, or otherwise regulates persons subject to its jurisdiction, or who grants the right to practice before or otherwise do business with the governmental entity. (22) "Reinstate" or "reinstatement" means to activate an expired license or to restore a license which is restricted, as defined in Subsection (26)(b), or is suspended, or placed on probation, to a lesser restrictive license or an active in good standing license. (23) "Relicense" or "relicensure" means to license an applicant who has previously been revoked or has previously surrendered a license. (24) "Remove or modify restrictions" means to remove or modify restrictions, as defined in Subsection (25)(a), placed on a license issued to an applicant for licensure. (25) "Restrict" or "restriction" means disciplinary action qualifying or limiting the scope of a license: (a) issued to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure in accordance with Section 58-1-304; or (b) issued to a licensee in place of the licensee's current license or disciplinary status. (26) "Revoke" or "revocation" means disciplinary action by the Division extinguishing a license. (27) "Suspend" or "suspension" means disciplinary action by the Division removing the right to use a license for a period of time or indefinitely as indicated in the disciplinary order, with the possibility of subsequent reinstatement of the right to use the license. (28) "Surrender" means voluntary action by a licensee giving back or returning to the Division in accordance with Section 58-1-306, all rights and privileges associated with a license issued to the licensee. (29) "Temporary license" or "temporary licensure" means a license issued by the Division on a temporary basis to an applicant for initial licensure, renewal or reinstatement of licensure, or relicensure in accordance with Section 58-1-303. (30) "Unprofessional conduct" as defined in Title 58 is further defined, in accordance with Subsection 58-1-203(1)(e), in Section R156-1-502. (31) "Warning or final disposition letters which do not constitute disciplinary action" as used in Subsection 58-1-108(3) mean letters which do not contain findings of fact or conclusions of law and do not constitute a reprimand, but which may address any or all of the following: (a) Division concerns; (b) allegations upon which those concerns are based; (c) potential for administrative or judicial action; and (d) disposition of Division concerns.

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R156-1-102a. Global Definitions of Levels of Supervision. (1) Except as otherwise provided by statute or rule, the global definitions of levels of supervision herein shall apply to supervision terminology used in Title 58 and Title R156, and shall be referenced and used, to the extent practicable, in statutes and rules to promote uniformity and consistency. (2) Except as otherwise provided by statute or rule, all unlicensed personnel specifically allowed to practice a regulated occupation or profession are required to practice under an appropriate level of supervision defined herein, as specified by the licensing act or licensing act rule governing each occupation or profession. (3) Except as otherwise provided by statute or rule, all license classifications required to practice under supervision shall practice under an appropriate level of supervision defined herein, as specified by the licensing act or licensing act rule governing each occupation or profession. (4) Levels of supervision are defined as follows: (a) "Direct supervision" and "immediate supervision" mean the supervising licensee is present and available for face-to-face communication with the person being supervised when and where occupational or professional services are being provided. (b) "Indirect supervision" means the supervising licensee: (i) has given either written or verbal instructions to the person being supervised; (ii) is present within the facility in which the person being supervised is providing services; and (iii) is available to provide immediate face-to-face communication with the person being supervised as necessary. (c) "General supervision" means that the supervising licensee: (i) has authorized the work to be performed by the person being supervised; (ii) is available for consultation with the person being supervised by personal face-to-face contact, or direct voice contact by telephone, radio or some other means, without regard to whether the supervising licensee is located on the same premises as the person being supervised; and (iii) can provide any necessary consultation within a reasonable period of time and personal contact is routine. (5) "Supervising licensee" means a licensee who has satisfied any requirements to act as a supervisor and has agreed to provide supervision of an unlicensed individual or a licensee in a classification or licensure status that requires supervision in accordance with the provisions of this chapter. 156-1-103. Authority - Purpose. This rule is adopted by the Division under the authority of Subsection 58-1-106(1)(a) to enable the Division to administer Title 58. R156-1-106. Division - Duties, Functions, and Responsibilities. (1) In accordance with Subsection 58-1-106(2), the following responses to requests for lists of licensees may include multiple licensees per request and may include home telephone numbers and home addresses, subject to the restriction that the addresses and telephone numbers shall only be used by a requester for purposes for which the requester is properly authorized and shall not be sold or otherwise redisclosed by the requester: (a) responses to requests from another governmental entity, government-managed corporation, a political subdivision, the federal government, another state, or a not-for-profit regulatory association to which the Division is a member; (b) responses to requests from an occupational or professional association, private continuing education organizations, trade union, university, or school, for purposes of education programs for licensees; (c) responses to a party to a prelitigation proceeding convened by the Division under Title 78, Chapter 14; (d) responses to universities, schools, or research facilities for the purposes of research;

5

(e) responses to requests from licensed health care facilities or third party credentialing services, for the purpose of verifying licensure status for issuing credentialing or reimbursement purposes; and (f) responses to requests from a person preparing for, participating in, or responding to: (i) a national, state or local emergency; (ii) a public health emergency as defined in Section 26-23b-102; or (iii) a declaration by the President of the United States or other federal official requesting public health-related activities. (2) In accordance with Subsection 58-1-106(3)(a) and (b), the Division may deny a request for an address or telephone number of a licensee to an individual who provides proper identification and the reason for the request, in writing, to the Division, if the reason for the request is deemed by the Division to constitute an unwarranted invasion of privacy or a threat to the public health, safety, and welfare. (3) In accordance with Subsection 58-1-106(3)(c), proper identification of an individual who requests the address or telephone number of a licensee and the reason for the request, in writing, shall consist of the individual's name, mailing address, and daytime number, if available. R156-1-107. Organization of Rules - Content, Applicability and Relationship of Rules. (1) The rules and sections in Title R156 shall, to the extent practicable, follow the numbering and organizational scheme of the chapters in Title 58. (2) Rule R156-1 shall contain general provisions applicable to the administration and enforcement of all occupations and professions regulated in Title 58. (3) The provisions of the other rules in Title R156 shall contain specific or unique provisions applicable to particular occupations or professions. (4) Specific rules in Title R156 may supplement or alter Rule R156-1 unless expressly provided otherwise in Rule R156-1. 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 bureau manager designated 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, the 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)(e), 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)(d), (h),(j), (m), (n), (p), and (t), and R156-46b-202(2)(a) and (b), however resolved, including memorandums of understanding and stipulated settlements.

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(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 Subsections R156-46b-201(1)(a) through (c), provided that any evidentiary hearing requested shall be conducted by the appropriate board who shall be designated as the presiding officer to act as the fact finder at any evidentiary hearing and shall issue a recommended order to the Division based upon the record developed at the hearing determining all issues pending before the Division to the director for a final order; (ii) formal adjudicative proceedings described in Subsection R156-46b-201(1)(f), for purposes of determining whether a request for a board of appeal is properly filed as set forth in Subsections R156-56-105(1) through (4); and (iii) informal adjudicative proceedings described in Subsections R156-46b-202(1)(a) through (c), (e), (g), (i), (k), and (o). (iv) 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) Contested Citation Hearing Officer. The regulatory and compliance officer or other contested 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)(l). (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)(f) for convening a board of appeal under Subsection 58-56-8(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 for adjudicative proceedings described in Subsection R156-46b-202(1)(g) that exceed the authority of the program coordinator, as delegated by the board, or are otherwise referred by the program coordinator to the board for action. (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 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 commission, the commission is designated as the presiding officer: (A) for formal adjudicative proceedings described in Subsections R156-46b-201(1)(e) and R156-46b-201(2)(a) through (b), however resolved, including stipulated settlements and hearings; (B) informal adjudicative proceedings described in Subsections R156-46b-202(1)(d), (m), (n), (p),(s) and (t), and R156-46b-202(2)(b) and (c), however resolved, including memorandums of understanding and stipulated settlements; (C) 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 (D) 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.

7

(iii) If the 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 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 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) If the director or his designee refuses to concur in an adopted order of the commission or its designee, the director or his designee shall return the order to the commission or its designee with the reasons set forth in writing for the nonconcurrence therein. 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, provided that unless the director or his designee and the commission or its designee agree to an extension, any final order must be issued within 90 days of the date of the initial recommended order, or the adjudicative proceeding shall be dismissed. 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 his 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 commission and concurred in by the director may be appealed by filing a request for agency review with the executive director or his 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 is designated as the presiding officer for the concurrence role on disciplinary proceedings under Subsections R156-46b-202(2)(c) as required by Subsection 58-55-103(1)(b)(iv). (c) Administrative Law Judge. Unless otherwise specified in writing by the commission, the 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 commission, the responsible bureau manager is designated as the presiding officer for conducting: (i) formal adjudicative proceedings specified in Subsections R156-46b-201(1)(a) through (c), provided that any evidentiary hearing requested shall be conducted by the appropriate board or commission who shall be designated as the presiding officer to act as the fact finder at any evidentiary hearing and to adopt orders as set forth in this rule; and (ii) informal adjudicative proceedings specified in Subsections R156-46b-202(1)(a) through (c), (e), (i),(o), (q) and (r). (iii) 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. (e) 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 commission in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed as plumbers. (f) Electricians Licensing Board. Except as set forth in Subsection (c) or as otherwise specified in writing by the commission, the Electricians Licensing Board is

8

designated as the presiding officer to serve as the fact finder and to issue recommended orders to the commission in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed as electricians. (g) 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 commission in formal evidentiary hearings associated with adjudicative proceedings involving persons licensed as or required to be licensed as alarm companies or agents. R156-1-110. Issuance of Investigative Subpoenas. (1) All requests for subpoenas in conjunction with a Division investigation made pursuant to Subsection 58-1-106(1)(c), shall be made in writing to the investigative subpoena authority and shall be accompanied by an original of the proposed subpoena. (a) Requests to the investigative subpoena authority shall contain adequate information to enable the subpoena authority to make a finding of sufficient need, including: the factual basis for the request, the relevance and necessity of the particular person, evidence, documents, etc., to the investigation, and an explanation why the subpoena is directed to the particular person upon whom it is to be served. (b) Approved subpoenas shall be issued under the seal of the Division and the signature of the subpoena authority. (2) The investigative subpoena authority may quash or modify an investigative subpoena if it is shown to be unreasonable or oppressive. R156-1-205. Peer or Advisory Committees - Executive Director to Appoint - Terms of Office - Vacancies in Office - Removal from Office - Quorum Requirements - Appointment of Chairman - Division to Provide Secretary - Compliance with Open and Public Meetings Act - Compliance with Utah Administrative Procedures Act - No Provision for Per Diem and Expenses. (1) The executive director shall appoint the members of peer or advisory committees established under Title 58 or Title R156. (2) Except for ad hoc committees whose members shall be appointed on a case-by-case basis, the term of office of peer or advisory committee members shall be for four years. The executive director shall, at the time of appointment or reappointment, adjust the length of terms to ensure that the terms of committee members are staggered so that approximately half of the peer or advisory committee is appointed every two years. (3) No peer or advisory committee member may serve more than two full terms, and no member who ceases to serve may again serve on the peer or advisory committee until after the expiration of two years from the date of cessation of service. (4) If a vacancy on a peer or advisory committee occurs, the executive director shall appoint a replacement to fill the unexpired term. After filling the unexpired term, the replacement may be appointed for only one additional full term. (5) If a peer or advisory committee member fails or refuses to fulfill the responsibilities and duties of a peer or advisory committee member, including the attendance at peer committee meetings, the executive director may remove the peer or advisory committee member and replace the member in accordance with this section. After filling the unexpired term, the replacement may be appointed for only one additional full term. (6) Committee meetings shall only be convened with the approval of the appropriate board and the concurrence of the Division. (7) Unless otherwise approved by the Division, peer or advisory committee meetings shall be held in the building occupied by the Division. (8) A majority of the peer or advisory committee members shall constitute a quorum and may act in behalf of the peer or advisory committee. (9) Peer or advisory committees shall annually designate one of their members to serve as peer or advisory committee chairman. The Division shall provide a Division employee to act as committee secretary to take minutes of committee meetings and to prepare committee correspondence.

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(10) Peer or advisory committees shall comply with the procedures and requirements of Title 52, Chapter 4, Open and Public Meetings, in their meetings. (11) Peer or advisory committees shall comply with the procedures and requirements of Title 63G, Chapter 4, Administrative Procedures Act, in their adjudicative proceedings. (12) Peer or advisory committee members shall perform their duties and responsibilities as public service and shall not receive a per diem allowance, or traveling or accommodations expenses incurred in peer or advisory committees business, except as otherwise provided in Title 58 or Title R156. R156-1-206. Emergency Adjudicative Proceeding Review Committees - Appointment - Terms - Vacancies - Removal - Quorum - Chairman and Secretary - Open and Public Meetings Act - Utah Administrative Procedures Act - Per Diem and Expenses. (1) The chairman of the board for the profession of the person against whom an action is proposed may appoint the members of emergency review committees on a case-by-case or period-of-time basis. (2) With the exception of the appointment and removal of members and filling of vacancies by the chairman of a board, emergency review committees, committees shall serve in accordance with Subsections R156-1-205(7), and (9) through (12). R156-1-301. Application for Licensure - Filing Date - Applicable Requirements for Licensure - Issuance Date. (1) The filing date for an application for licensure shall be the postmark date of the application or the date the application is received and date stamped by the Division, whichever is earlier. (2) Except as otherwise provided by statute, rule or order, the requirements for licensure applicable to an application for licensure shall be the requirements in effect on the filing date of the application. (3) The issuance date for a license issued to an applicant for licensure shall be as follows: (a) the date the approval is input into the Division's electronic licensure database for applications submitted and processed manually; or (b) the date printed on the verification of renewal certificate for renewal applications submitted and processed electronically via the Division's Internet Renewal System. R156-1-302. Consideration of Good Moral Character, Unlawful Conduct, Unprofessional Conduct, or Other Mental or Physical Condition. Pursuant to the provisions of Subsection 58-1-401(1) and (2), if an applicant or licensee has failed to demonstrate good moral character, has been involved in unlawful conduct, has been involved in unprofessional conduct, or has any other mental or physical condition which conduct or condition, when considered with the duties and responsibilities of the license held or to be held, demonstrates a threat or potential threat to the public health, safety or welfare, the Division may consider various relevant factors in determining what action to take regarding licensure including the following: (1) aggravating circumstances, as defined in Subsection R156-1-102(2); (2) mitigating circumstances, as defined in Subsection R156-1-102(16); (3) the degree of risk to the public health, safety or welfare; (4) the degree of risk that a conduct will be repeated; (5) the degree of risk that a condition will continue; (6) the magnitude of the conduct or condition as it relates to the harm or potential harm; (7) the length of time since the last conduct or condition has occurred; (8) the current criminal probationary or parole status of the applicant or licensee; (9) the current administrative status of the applicant or licensee; (10) results of previously submitted applications, for any regulated profession or occupation;

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(11) results from any action, taken by any professional licensing agency, criminal or administrative agency, employer, practice monitoring group, entity or association; (12) evidence presented indicating that restricting or monitoring an individual's practice, conditions or conduct can protect the public health, safety or welfare; (13) psychological evaluations; or (14) any other information the Division or the board reasonably believes may assist in evaluating the degree of threat or potential threat to the public health, safety or welfare. R156-1-305. Inactive Licensure. (1) In accordance with Section 58-1-305, except as provided in Subsection (2), a licensee may not apply for inactive licensure status. (2) The following licenses issued under Title 58 that are active in good standing may be placed on inactive licensure status: (a) advanced practice registered nurse; (b) architect; (c) audiologist; (d) certified nurse midwife; (e) certified public accountant emeritus; (f) certified registered nurse anesthetist; (g) certified court reporter; (h) certified social worker; (i) chiropractic physician; (j) clinical social worker; (k) contractor; (l) deception detection examiner; (m) deception detection intern; (n) dental hygienist; (o) dentist; (p) direct-entry midwife; (q) genetic counselor; (r) health facility administrator; (s) hearing instrument specialist; (t) licensed substance abuse counselor; (u) marriage and family therapist; (v) naturopath/naturopathic physician; (w) optometrist; (x) osteopathic physician and surgeon; (y) pharmacist; (z) pharmacy technician; (aa) physician assistant; (bb) physician and surgeon; (cc) podiatric physician; (dd) private probation provider; (ee) professional counselor; (ff) professional engineer; (gg) professional land surveyor (hh) professional structural engineer; (ii) psychologist; (jj) radiology practical technician; (kk) radiology technologist; (ll) security personnel; (mm) speech-language pathologist; and (nn) veterinarian. (3) Applicants for inactive licensure shall apply to the Division in writing upon forms available from the Division. Each completed application shall contain documentation of requirements for inactive licensure, shall be verified by the applicant, and shall be accompanied by the appropriate fee.

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(4) If all requirements are met for inactive licensure, the Division shall place the license on inactive status. (5) A license may remain on inactive status indefinitely except as otherwise provided in Title 58 or rules which implement Title 58. (6) An inactive license may be activated by requesting activation in writing upon forms available from the Division. Unless otherwise provided in Title 58 or rules which implement Title 58, each reactivation application shall contain documentation that the applicant meets current renewal requirements, shall be verified by the applicant, and shall be accompanied by the appropriate fee. (7) An inactive licensee whose license is activated during the last four months of a renewal cycle shall, upon payment of the appropriate fees, be licensed for a full renewal cycle plus the period of time remaining until the impending renewal date, rather than being required to immediately renew their activated license. (8) A Controlled Substance license may be placed on inactive status if attached to a primary license listed in Subsection R156-1-305(2) and the primary license is placed on inactive status. R156-1-308a. Renewal Dates. (1) The following standard two-year renewal cycle renewal dates are established by license classification in accordance with the Subsection 58-1-308(1): TABLE RENEWAL DATES (1) Acupuncturist May 31 even years (2) Advanced Practice Registered Nurse January 31 even years (3) Alternate Dispute Resolution Provdr September 30 even years (4) Architect May 31 even years (5) Athlete Agent September 30 even years (6) Athletic Trainer May 31 odd years (7) Audiologist May 31 odd years (8) Barber September 30 odd years (9) Barber School September 30 odd years (10) Building Inspector November 30 odd years (11) Burglar Alarm Security November 30 even years (12) C.P.A. Firm September 30 even years (13) Certified Court Reporter May 31 even years (14) Certified Dietitian September 30 even years (15) Certified Medical Language Interpreter March 31 odd years (16) Certified Nurse Midwife January 31 even years (17) Certified Public Accountant September 30 even years (18) Certified Registered Nurse Anesthetist January 31 even years (19) Certified Social Worker September 30 even years (20) Chiropractic Physician May 31 even years (21) Clinical Social Worker September 30 even years (22) Construction Trades Instructor November 30 odd years (23) Contractor November 30 odd years (24) Controlled Substance License Attached to primary license renewal (25) Controlled Substance Precursor May 31 odd years (26) Controlled Substance Handler May 31 odd years (27) Cosmetologist/Barber September 30 odd years (28) Cosmetology/Barber School September 30 odd years (29) Deception Detection November 30 even years (30) Dental Hygienist May 31 even years (31) Dentist May 31 even years (32) Direct-entry Midwife Sept 30 odd years

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(33) Electrician Apprentice, Journeyman, Master, Residential Journeyman, Residential Master November 30 even years (34) Electrologist September 30 odd years (35) Electrology School September 30 odd years (36) Elevator Mechanic November 30 even years (37) Environmental Health Scientist May 31 odd years (38) Esthetician September 30 odd years (39) Esthetics School September 30 odd years (40) Factory Built Housing Dealer September 30 even years (41) Funeral Service Director May 31 even years (42) Funeral Service May 31 even years Establishment (43) Genetic Counselor September 30 even years (44) Health Facility May 31 odd years Administrator (45) Hearing Instrument September 30 even years Specialist (46) Internet Facilitator September 30 odd years (47) Landscape Architect May 31 even years (48) Licensed Practical Nurse January 31 even years (49) Licensed Substance Abuse May 31 odd years Counselor (50) Marriage and Family September 30 even years Therapist (51) Massage Apprentice, May 31 odd years Therapist (52) Master Esthetician September 30 odd years (53) Medication Aide Certified March 31 odd years (54) Nail Technologist September 30 odd years (55) Nail Technology School September 30 odd years (56) Naturopath/Naturopathic May 31 even years Physician (57) Occupational Therapist May 31 odd years (58) Occupational Therapy May 31 odd years Assistant (59) Optometrist September 30 even years (60) Osteopathic Physician and May 31 even years Surgeon, Online Prescriber (61) Outfitter/Hunting Guide May 31 even years (62) Pharmacy Class A-B-C-D-E, September 30 odd years Online Contract Pharmacy (63) Pharmacist September 30 odd years (64) Pharmacy Technician September 30 odd years (65) Physical Therapist May 31 odd years (66) Physical Therapist Assistant May 31 odd years (67) Physician Assistant May 31 even years (68) Physician and Surgeon, January 31 even years Online Prescriber (69) Plumber Apprentice, Journeyman, Master, Residential Master, Residential Journeyman November 30 even years (70) Podiatric Physician September 30 even years (71) Pre Need Funeral Arrangement Sales Agent May 31 even years (72) Private Probation Provider May 31 odd years

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(73) Professional Counselor September 30 even years (74) Professional Engineer March 31 odd years (75) Professional Geologist March 31 odd years (76) Professional Land Surveyor March 31 odd years (77) Professional Structural March 31 odd years Engineer (78) Psychologist September 30 even years (79) Radiology Technologist, May 31 odd years Radiology Practical Technician (80) Recreational Therapy Technician, Specialist, Master Specialist May 31 odd years (81) Registered Nurse January 31 odd years (82) Respiratory Care September 30 even years Practitioner (83) Security Personnel November 30 even years (84) Social Service Worker September 30 even years (85) Speech-Language Pathologist May 31 odd years (86) Veterinarian September 30 even years (2) The following non-standard renewal terms and renewal or extension cycles are established by license classification in accordance with Subsection 58-1-308(1) and in accordance with specific requirements of the license: (a) Associate Marriage and Family Therapist licenses shall be issued for a three year term and may be extended if the licensee presents satisfactory evidence to the Division and the board that reasonable progress is being made toward passing the qualifying examinations or is otherwise on a course reasonably expected to lead to licensure; but the period of the extension may not exceed two years past the date the minimum supervised experience requirement has been completed. (b) Associate Professional Counselor licenses shall be issued for a three year term and may be extended if the licensee presents satisfactory evidence to the Division and the board that reasonable progress is being made toward passing the qualifying examinations or is otherwise on a course reasonably expected to lead to licensure. (c) Certified Social Worker Intern licenses shall be issued for a period of six months or until the examination is passed whichever occurs first. (d) Funeral Service Apprentice licenses shall be issued for a two year term and may be extended for an additional two year term if the licensee presents satisfactory evidence to the Division and the board that reasonable progress is being made toward passing the qualifying examinations or is otherwise on a course reasonably expected to lead to licensure. (e) Psychology Resident licenses shall be issued for a two year term and may be extended if the licensee presents satisfactory evidence to the Division and the board that reasonable progress is being made toward passing the qualifying examinations or is otherwise on a course reasonably expected to lead to licensure; but the period of the extension may not exceed two years past the date the minimum supervised experience requirement has been completed. (f) Hearing Instrument Intern licenses shall be issued for a three year term and may be extended if the licensee presents satisfactory evidence to the Division and the Board that reasonable progress is being made toward passing the qualifying examination, but a circumstance arose beyond the control of the licensee, to prevent the completion of the examination process. (g) Vocational Rehabilitation Counselor licenses will be renewed annually on March 31.

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R156-1-308b. Renewal Periods - Adjustment of Renewal Fees for an Extended or Shortened Renewal Period. (1) Except as otherwise provided by statute or as required to establish or reestablish a renewal period, each renewal period shall be for a period of two years. (2) The renewal fee for a renewal period which is extended or shortened by more than one month to establish or reestablish a renewal period shall increased or decreased proportionately. R156-1-308c. Renewal of Licensure Procedures. The procedures for renewal of licensure shall be as follows: (1) The Division shall send a renewal notice to each licensee at least 60 days prior to the expiration date shown on the licensee's license. The notice shall include directions for the licensee to renew the license via the Division's website. (2)(a) Except as provided in Subsection (2)(b), renewal notices shall be sent by mail deposited in the post office with postage prepaid, addressed to the last mailing address shown on the Division's automated license system. Such mailing shall constitute legal notice. It shall be the duty and responsibility of each licensee to maintain a current mailing address with the Division. (b) If a licensee has authorized the Division to send a renewal notice by email, a renewal notice may be sent by email to the last email address shown on the Division's automated license system. Such mailing shall constitute legal notice. It shall be the duty and responsibility of a licensee who authorizes the Division to send a renewal notice by email to maintain a current email address with the Division. (3) Renewal notices shall provide that the renewal requirements are outlined in the online renewal process and that each licensee is required to document or certify that the licensee meets the renewal requirements prior to renewal. (4) Renewal notices shall advise each licensee that a license that is not renewed prior to the expiration date shown on the license automatically expires and that any continued practice without a license constitutes a criminal offense under Subsection 58-1-501(1)(a). (5) Licensees licensed during the last four months of a renewal cycle shall be licensed for a full renewal cycle plus the period of time remaining until the impending renewal date, rather than being required to immediately renew their license. R156-1-308d. Waiver of Continuing Education Requirements - Renewal Requirements. (1)(a) In accordance with Subsection 58-1-203(1)(g), a licensee may request a waiver of any continuing education requirement established under this title or an extension of time to complete any requirement on the basis that the licensee was unable to complete the requirement due to a medical or related condition, humanitarian or ecclesiastical services, extended presence in a geographical area where continuing education is not available, etc. (b) A request must be submitted no later than the deadline for completing any continuing education requirement. (c) A licensee submitting a request has the burden of proof and must document the reason for the request to the satisfaction of the Division. (d) A request shall include the beginning and ending dates during which the licensee was unable to complete the continuing education requirement and a detailed explanation of the reason why. The explanation shall include the extent and duration of the impediment, extent to which the licensee continued to be engaged in practice of his profession, the nature of the medical condition, the location and nature of the humanitarian services, the geographical area where continuing education is not available, etc. (e) The Division may require that a specified number of continuing education hours, courses, or both, be obtained prior to reentering the practice of the profession or within a specified period of time after reentering the practice of the profession, as recommended by the appropriate board, in order to assure competent practice. (f) While a licensee may receive a waiver from meeting the minimum continuing education requirements, the licensee shall not be exempted from the requirements of

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Subsection 58-1-501(2)(i), which requires that the licensee provide services within the competency, abilities and education of the licensee. If a licensee cannot competently provide services, the waiver of meeting the continuing education requirements may be conditioned upon the licensee limiting practice to areas in which the licensee has the required competency, abilities and education. R156-1-308e. Automatic Expiration of Licensure Upon Dissolution of Licensee. (1) A license that automatically expires prior to the expiration date shown on the license due to the dissolution of the licensee's registration with the Division of Corporations, with the registration thereafter being retroactively reinstated pursuant to Section 16-10a-1422, shall: (a) upon written application for reinstatement of licensure submitted prior to the expiration date shown on the license, be retroactively reinstated to the date of expiration of licensure; and (b) upon written application for reinstatement submitted after the expiration date shown on the current license, be reinstated on the effective date of the approval of the application for reinstatement, rather than relating back retroactively to the date of expiration of licensure. R156-1-308f. Denial of Renewal of Licensure - Classification of Proceedings - Conditional Renewal of Licensure During Adjudicative Proceedings - Conditional Initial, Renewal, or Reinstatement Licensure During Audit or Investigation. (1) Denial of renewal of licensure shall be classified as a formal adjudicative proceeding under Rule R156-46b, with allowance for exceptions. (2) When a renewal application is denied and the applicant concerned requests a hearing to challenge the Division's action as permitted by Subsection 63G-4-201(3)(d)(ii), unless the requested hearing is convened and a final order is issued prior to the expiration date shown on the applicant's current license, the Division shall conditionally renew the applicant's license during the pendency of the adjudicative proceeding as permitted by Subsection 58-1-106(1)(h). (3)(a) When an initial, renewal or reinstatement applicant under Subsections 58-1-301(2) through (3) or 58-1-308(5) or (6)(b) is selected for audit or is under investigation, the Division may conditionally issue an initial license to an applicant for initial licensure, or renew or reinstate the license of an applicant pending the completion of the audit or investigation. (b) The undetermined completion of a referenced audit or investigation rather than the established expiration date shall be indicated as the expiration date of a conditionally issued, renewed, or reinstated license. (c) A conditional issuance, renewal, or reinstatement shall not constitute an adverse licensure action. (d) Upon completion of the audit or investigation, the Division shall notify the initial license, renewal, or reinstatement applicant whether the applicant's license is unconditionally issued, renewed, reinstated, denied, or partially denied or reinstated. (e) A notice of unconditional denial or partial denial of licensure to an applicant the Division conditionally licensed, renewed, or reinstated shall include the following: (i) that the applicant's unconditional initial issuance, renewal, or reinstatement of licensure is denied or partially denied and the basis for such action; (ii) the Division's file or other reference number of the audit or investigation; (iii) that the denial or partial denial of unconditional initial licensure, renewal, or reinstatement of licensure is subject to review and a description of how and when such review may be requested; (iv) that the applicant's conditional license automatically will or did expire on the expiration date shown on the conditional license, and that the applicant will not be issued, renewed, or reinstated unless or until the applicant timely requests review; and (v) that if the applicant timely requests review, the applicant's conditionally issued, renewed, or reinstated license does not expire until an order is issued

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unconditionally issuing, renewing, reinstating, denying, or partially denying the initial issuance, renewal, or reinstatement of the applicant's license. R156-1-308g. Reinstatement of Licensure Which was Active and In Good Standing at the Time of Expiration of Licensure - Requirements. The following requirements shall apply to reinstatement of licensure which was active and in good standing at the time of expiration of licensure: (1) In accordance with Subsection 58-1-308(5), if an application for reinstatement is received by the Division between the date of the expiration of the license and 30 days after the date of the expiration of the license, the applicant shall: (a) submit a completed renewal form as furnished by the Division demonstrating compliance with requirements and/or conditions of license renewal; and (b) pay the established license renewal fee and a late fee. (2) In accordance with Subsection 58-1-308(5), if an application for reinstatement is received by the Division between 31 days after the expiration of the license and two years after the date of the expiration of the license, the applicant shall: (a) submit a completed renewal form as furnished by the Division demonstrating compliance with requirements and/or conditions of license renewal; and (b) pay the established license renewal fee and reinstatement fee. (3) In accordance with Subsection 58-1-308(6)(a), if an application for reinstatement is received by the Division more than two years after the date the license expired and the applicant has not been active in the licensed occupation or profession while in the full-time employ of the United States government or under license to practice that occupation or profession in any other state or territory of the United States during the time the license was expired, the applicant shall: (a) submit an application for licensure complete with all supporting documents as is required of an individual making an initial application for license demonstrating the applicant meets all current qualifications for licensure and compliance with requirements and/or conditions of license reinstatement; (b) provide information requested by the Division and board to clearly demonstrate the applicant is currently competent to engage in the occupation or profession for which reinstatement of licensure is requested; (c) if the applicant has not been engaged in unauthorized practice of the applicant's occupation or profession following the expiration of the applicant's license, pay the established license fee for a new applicant for licensure; and (d) if the applicant has been engaged in unauthorized practice of the applicant's occupation or profession following the expiration of the applicant's license, pay the current license renewal fee multiplied by the number of renewal periods for which the license renewal fee has not been paid since the time of expiration of license, plus a reinstatement fee. (4) In accordance with Subsection 58-1-308(6)(b), if an application for reinstatement is received by the Division more than two years after the date the license expired but the applicant has been active in the licensed occupation or profession while in the full-time employ of the United States government or under license to practice that occupation or profession in any other state or territory of the United States shall: (a) provide documentation of prior licensure in the State of Utah; (b) provide documentation that the applicant has continuously, since the expiration of the applicant's license in Utah, been active in the licensed occupation or profession while in the full-time employ of the United States government or under license to practice that occupation or profession in any other state or territory of the United States; (c) provide documentation that the applicant has completed or is in compliance with any renewal qualifications; (d) provide documentation that the applicant's application was submitted within six months after reestablishing domicile within Utah or terminating full-time government service; and (e) pay the established license renewal fee and the reinstatement fee.

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R156-1-308h. Reinstatement of Restricted, Suspended, or Probationary Licensure During Term of Restriction, Suspension, or Probation - Requirements. (1) Reinstatement of restricted, suspended, or probationary licensure during the term of limitation, suspension, or probation shall be in accordance with the disciplinary order which imposed the discipline. (2) Unless otherwise specified in a disciplinary order imposing restriction, suspension, or probation of licensure, the disciplined licensee may, at reasonable intervals during the term of the disciplinary order, petition for reinstatement of licensure. (3) Petitions for reinstatement of licensure during the term of a disciplinary order imposing restriction, suspension, or probation, shall be treated as a request to modify the terms of the disciplinary order, not as an application for licensure. R156-1-308i. Reinstatement of Restricted, Suspended, or Probationary Licensure After the Specified Term of Suspension of the License or After the Expiration of Licensure in a Restricted, Suspended or Probationary Status - Requirements. Unless otherwise provided by a disciplinary order, an applicant who applies for reinstatement of a license after the specified term of suspension of the license or after the expiration of the license in a restricted, suspended or probationary status shall: (1) submit an application for licensure complete with all supporting documents as is required of an individual making an initial application for license demonstrating the applicant meets all current qualifications for licensure and compliance with requirements and conditions of license reinstatement; (2) pay the established license renewal fee and the reinstatement fee; (3) provide information requested by the Division and board to clearly demonstrate the applicant is currently competent to be reinstated to engage in the occupation or profession for which the applicant was suspended, restricted, or placed on probation; and (4) pay any fines or citations owed to the Division prior to the expiration of license. R156-1-308j. Relicensure Following Revocation of Licensure - Requirements. An applicant for relicensure following revocation of licensure shall: (1) submit an application for licensure complete with all supporting documents as is required of an individual making an initial application for license demonstrating the applicant meets all current qualifications for licensure and compliance with requirements and/or conditions of license reinstatement; (2) pay the established license fee for a new applicant for licensure; and (3) provide information requested by the Division and board to clearly demonstrate the applicant is currently competent to be relicensed to engage in the occupation or profession for which the applicant was revoked. R156-1-308k. Relicensure Following Surrender of Licensure - Requirements. The following requirements shall apply to relicensure applications following the surrender of licensure: (1) An applicant who surrendered a license that was active and in good standing at the time it was surrendered shall meet the requirements for licensure listed in Sections R156-1-308a through R156-1-308l. (2) An applicant who surrendered a license while the license was active but not in good standing as evidenced by the written agreement supporting the surrender of license shall: (a) submit an application for licensure complete with all supporting documents as is required of an individual making an initial application for license demonstrating the applicant meets all current qualifications for licensure and compliance with requirements and/or conditions of license reinstatement; (b) pay the established license fee for a new applicant for licensure; (c) provide information requested by the Division and board to clearly demonstrate the applicant is currently competent to be relicensed to engage in the occupation or profession for which the applicant was surrendered;

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(d) pay any fines or citations owed to the Division prior to the surrender of license. R156-1-308l. Reinstatement of Licensure and Relicensure - Term of Licensure. Except as otherwise governed by the terms of an order issued by the Division, a license issued to an applicant for reinstatement or relicensure issued during the last four months of a renewal cycle shall, upon payment of the appropriate fees, be issued for a full renewal cycle plus the period of time remaining until the impending renewal date, rather than requiring the licensee to immediately renew their reinstated or relicensed license. R156-1-310. Cheating on Examinations. (1) Policy. The passing of an examination, when required as a condition of obtaining or maintaining a license issued by the Division, is considered to be a critical indicator that an applicant or licensee meets the minimum qualifications for licensure. Failure to pass an examination is considered to be evidence that an applicant or licensee does not meet the minimum qualifications for licensure. Accordingly, the accuracy of the examination result as a measure of an applicant's or licensee's competency must be assured. Cheating by an applicant or licensee on any examination required as a condition of obtaining a license or maintaining a license shall be considered unprofessional conduct and shall result in imposition of an appropriate penalty against the applicant or licensee. (2) Cheating Defined. Cheating is defined as the use of any means or instrumentality by or for the benefit of an examinee to alter the results of an examination in any way to cause the examination results to inaccurately represent the competency of an examinee with respect to the knowledge or skills about which they are examined. Cheating includes: (a) communication between examinees inside of the examination room or facility during the course of the examination; (b) communication about the examination with anyone outside of the examination room or facility during the course of the examination; (c) copying another examinee's answers or looking at another examinee's answers while an examination is in progress; (d) permitting anyone to copy answers to the examination; (e) substitution by an applicant or licensee or by others for the benefit of an applicant or licensee of another person as the examinee in place of the applicant or licensee; (f) use by an applicant or licensee of any written material, audio material, video material or any other mechanism not specifically authorized during the examination for the purpose of assisting an examinee in the examination; (g) obtaining, using, buying, selling, possession of or having access to a copy of any portion of the examination prior to administration of the examination. (3) Action Upon Detection of Cheating. (a) The person responsible for administration of an examination, upon evidence that an examinee is or has been cheating on an examination shall notify the Division of the circumstances in detail and the identity of the examinees involved with an assessment of the degree of involvement of each examinee; (b) If cheating is detected prior to commencement of the examination, the examinee may be denied the privilege of taking the examination; or if permitted to take the examination, the examinee shall be notified of the evidence of cheating and shall be informed that the Division may consider the examination to have been failed by the applicant or licensee because of the cheating; or (c) If cheating is detected during the examination, the examinee may be requested to leave the examination facility and in that case the examination results shall be the same as failure of the examination; however, if the person responsible for administration of the examination determines the cheating detected has not yet compromised the integrity

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of the examination, such steps as are necessary to prevent further cheating shall be taken and the examinee may be permitted to continue with the examination. (d) If cheating is detected after the examination, the Division shall make appropriate inquiry to determine the facts concerning the cheating and shall thereafter take appropriate action. (e) Upon determination that an applicant has cheated on an examination, the applicant may be denied the privilege of retaking the examination for a reasonable period of time, and the Division may deny the applicant a license and may establish conditions the applicant must meet to qualify for a license including the earliest date on which the Division will again consider the applicant for licensure. R156-1-404a. Diversion Advisory Committees Created. (1) There are created diversion advisory committees of at least three members for the professions regulated under Title 58. The diversion committees are not required to be impaneled by the director until the need for the diversion committee arises. Diversion committees may be appointed with representatives from like professions providing a multi-disciplinary committee. (2) Committee members are appointed by and serve at the pleasure of the director. (3) A majority of the diversion committee members shall constitute a quorum and may act on behalf of the diversion committee. (4) Diversion committee members shall perform their duties and responsibilities as public service and shall not receive a per diem allowance, or traveling or accommodations expenses incurred in diversion committees business. R156-1-404b. Diversion Committees Duties. The duties of diversion committees shall include: (1) reviewing the details of the information regarding licensees referred to the diversion committee for possible diversion, interviewing the licensees, and recommending to the director whether the licensees meet the qualifications for diversion and if so whether the licensees should be considered for diversion; (2) recommending to the director terms and conditions to be included in diversion agreements; (3) supervising compliance with all terms and conditions of diversion agreements; (4) advising the director at the conclusion of a licensee's diversion program whether the licensee has completed the terms of the licensee's diversion agreement; and (5) establishing and maintaining continuing quality review of the programs of professional associations and/or private organizations to which licensees approved for diversion may enroll for the purpose of education, rehabilitation or any other purpose agreed to in the terms of a diversion agreement. R156-1-404c. Diversion - Eligible Offenses. In accordance with Subsection 58-1-404(4), the unprofessional conduct which may be subject to diversion is set forth in Subsections 58-1-501(2)(e) and (f). R156-1-404d. Diversion - Procedures. (1) Diversion committees shall complete the duties described in Subsection R156-1-404b(1) and (2) no later than 60 days following the referral of a licensee to the diversion committee for possible diversion. (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, 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 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 Subsections 58-1-404.

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(4) If a final diversion agreement is not reached with the director within 30 days from service of the proposed diversion agreement, the Division shall pursue appropriate disciplinary action against the licensee in accordance with Section 58-1-108. (5) 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. R156-1-404e. Diversion - Agreements for Rehabilitation, Education or Other Similar Services or Coordination of Services. (1) The Division may enter into agreements with professional or occupational organizations or associations, education institutions or organizations, testing agencies, health care facilities, health care practitioners, government agencies or other persons or organizations for the purpose of providing rehabilitation, education or any other services necessary to facilitate an effective completion of a diversion program for a licensee. (2) The Division may enter into agreements with impaired person programs to coordinate efforts in rehabilitating and educating impaired professionals. (3) Agreements shall be in writing and shall set forth terms and conditions necessary to permit each party to properly fulfill its duties and obligations thereunder. Agreements shall address the circumstances and conditions under which information concerning the impaired licensee will be shared with the Division. (4) The cost of administering agreements and providing the services thereunder shall be borne by the licensee benefiting from the services. Fees paid by the licensee shall be reasonable and shall be in proportion to the value of the service provided. Payments of fees shall be a condition of completing the program of diversion. (5) In selecting parties with whom the Division shall enter agreements under this section, the Division shall ensure the parties are competent to provide the required services. The Division may limit the number of parties providing a particular service within the limits or demands for the service to permit the responsible diversion committee to conduct quality review of the programs given the committee's limited resources. R156-1-502. Unprofessional Conduct. "Unprofessional conduct" includes: (1) surrendering licensure to any other licensing or regulatory authority having jurisdiction over the licensee or applicant in the same occupation or profession while an investigation or inquiry into allegations of unprofessional or unlawful conduct is in progress or after a charging document has been filed against the applicant or licensee alleging unprofessional or unlawful conduct; (2) practicing a regulated occupation or profession in, through, or with a limited liability company which has omitted the words "limited company," "limited liability company," or the abbreviation "L.C." or "L.L.C." in the commercial use of the name of the limited liability company; (3) practicing a regulated occupation or profession in, through, or with a limited partnership which has omitted the words "limited partnership," "limited," or the abbreviation "L.P." or "Ltd" in the commercial use of the name of the limited partnership; (4) practicing a regulated occupation or profession in, through, or with a professional corporation which has omitted the words "professional corporation" or the abbreviation "P.C." in the commercial use of the name of the professional corporation; (5) using a DBA (doing business as name) which has not been properly registered with the Division of Corporations and with the Division of Occupational and Professional Licensing; or (6) failing, as a prescribing practitioner, to follow the "Model Policy for the Use of Controlled Substances for the Treatment of Pain", 2004, established by the Federation of State Medical Boards, which is hereby adopted and incorporated by reference.

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R156-1-503. Reporting Disciplinary Action. The Division may report disciplinary action to other state or federal governmental entities, state and federal data banks, the media, or any other person who is entitled to such information under the Government Records Access and Management Act. KEY: diversion programs, licensing, occupational licensing, supervision Date of Enactment or Last Substantive Amendment: February 24, 2011 Notice of Continuation: March 1, 2007 Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-308; 58-1-501(4)

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GENERAL RULE OF THE DIVISION OF OCCUPATIONAL AND PROFESSIONAL LICENSING R156-1 Utah Administrative Code Issued February 24, 2011

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FUNERAL SERVICES LICENSING ACT Part 1. General Provisions 58-9-101. Title. This chapter is known as the "Funeral Services Licensing Act." 58-9-102. Definitions. In addition to the definitions in Section 58-1-102 , as used in this chapter: (1) "Authorizing agent" means a person legally entitled to authorize the cremation

of human remains. (2) "Beneficiary" means the individual who, at the time of the beneficiary's

death, is to receive the benefit of the property and services purchased under a preneed funeral arrangement.

(3) "Board" means the Board of Funeral Service created in Section 58-9-201. (4) "Body part" means: (a) a limb or other portion of the anatomy that is removed from a person or

human remains for medical purposes during treatment, surgery, biopsy, autopsy, or medical research; or

(b) a human body or any portion of a body that has been donated to science for medical research purposes.

(5) "Buyer" means a person who purchases a preneed funeral arrangement. (6) "Calcination" means a process in which a dead human body is reduced by intense

heat to a residue that is not as substantive as the residue that follows cremation.

(7) "Cremated remains" means all the remains of a cremated body recovered after the completion of the cremation process, including pulverization which leaves only bone fragments reduced to unidentifiable dimensions and may possibly include the residue of foreign matter including casket material, bridgework, or eyeglasses that were cremated with the human remains.

(8) "Cremation" means the technical process, using direct flame and heat, that reduces human remains to bone fragments through heat and evaporation and includes the processing and usually the pulverization of the bone fragments.

(9) "Cremation chamber" means the enclosed space within which the cremation process takes place and which is used exclusively for the cremation of human remains.

(10) "Cremation container" means the container: (a) in which the human remains are transported to the crematory and placed

in the cremation chamber for cremation; and (b) that meets substantially all of the following standards: (i) composed of readily combustible materials suitable for cremation; (ii) able to be closed in order to provide a complete covering for the

human remains; (iii) resistant to leakage or spillage; (iv) rigid enough for handling with ease; and (v) able to provide protection for the health, safety, and personal

integrity of crematory personnel. (11) "Crematory" means the building or portion of a building that houses the

cremation chamber and the holding facility. (12) "Direct disposition" means the disposition of a dead human body: (a) as quickly as law allows; (b) without preparation of the body by embalming; and (c) without an attendant funeral service or graveside service. (13) "Disposition" means the final disposal of a dead human body by: (a) earth interment; (b) above ground burial; (c) cremation; (d) calcination; (e) burial at sea; (f) delivery to a medical institution; or (g) other lawful means. (14) "Embalming" means replacing body fluids in a dead human body with preserving

and disinfecting chemicals. (15) (a) "Funeral merchandise" means any of the following into which a dead human

body is placed in connection with the transportation or disposition of the body:

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(i) a vault; (ii) a casket; or (iii) other personal property. (b) "Funeral merchandise" does not include: (i) a mausoleum crypt; (ii) an interment receptacle preset in a cemetery; or (iii) a columbarium niche. (16) "Funeral service" means a service, rite, or ceremony performed: (a) with respect to the death of a human; and (b) with the body of the deceased present. (17) "Funeral service director" means an individual licensed under this chapter who

may engage in all lawful professional activities regulated and defined under the practice of funeral service.

(18) (a) "Funeral service establishment" means a place of business at a specific street address or location licensed under this chapter that is devoted to:

(i) the embalming, care, custody, shelter, preparation for burial, and final disposition of dead human bodies; and

(ii) the furnishing of services, merchandise, and products purchased from the establishment as a preneed provider under a preneed funeral arrangement.

(b) "Funeral service establishment" includes: (i) all portions of the business premises and all tools, instruments,

and supplies used in the preparation and embalming of dead human bodies for burial, cremation, and final disposition as defined by division rule; and

(ii) a facility used by the business in which funeral services may be conducted.

(19) "Funeral service intern" means an individual licensed under this chapter who is permitted to:

(a) assist a funeral service director in the embalming or other preparation of a dead human body for disposition;

(b) assist a funeral service director in the cremation, calcination, or pulverization of a dead human body or its remains; and

(c) perform other funeral service activities under the supervision of a funeral service director.

(20) "Graveside service" means a funeral service held at the location of disposition.

(21) "Memorial service" means a service, rite, or ceremony performed: (a) with respect to the death of a human; and (b) without the body of the deceased present. (22) "Practice of funeral service" means: (a) supervising the receipt of custody and transportation of a dead human

body to prepare the body for: (i) disposition; or (ii) shipment to another location; (b) entering into a contract with a person to provide professional services

regulated under this chapter; (c) embalming or otherwise preparing a dead human body for disposition; (d) supervising the arrangement or conduct of: (i) a funeral service; (ii) a graveside service; or (iii) a memorial service; (e) cremation, calcination, or pulverization of a dead human body or the

body's remains; (f) supervising the arrangement of: (i) a disposition; or (ii) a direct disposition; (g) facilitating: (i) a disposition; or (ii) a direct disposition; (h) supervising the sale of funeral merchandise by a funeral establishment; (i) managing or otherwise being responsible for the practice of funeral

service in a licensed funeral service establishment; (j) supervising the sale of a preneed funeral arrangement; and (k) contracting with or employing individuals to sell a preneed funeral

arrangement. (23) (a) "Preneed funeral arrangement" means a written or oral agreement sold in

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advance of the death of the beneficiary under which a person agrees with a buyer to provide at the death of the beneficiary any of the following as are typically provided in connection with a disposition:

(i) goods; (ii) services, including: (A) embalming services; and (B) funeral directing services; (iii) real property; or (iv) personal property, including: (A) a casket; (B) another primary container; (C) a cremation or transportation container; (D) an outer burial container; (E) a vault; (F) a grave liner; (G) funeral clothing and accessories; (H) a monument; (I) a grave marker; and (J) a cremation urn. (b) "Preneed funeral arrangement" does not include a policy or product of

life insurance providing a death benefit cash payment upon the death of the beneficiary which is not limited to providing the products or services described in Subsection (23)(a).

(24) "Processing" means the reduction of identifiable bone fragments after the completion of the cremation process to unidentifiable bone fragments by manual means.

(25) "Pulverization" means the reduction of identifiable bone fragments after the completion of the cremation and processing to granulated particles by manual or mechanical means.

(26) "Sales agent" means an individual licensed under this chapter as a preneed funeral arrangement sales agent.

(27) "Temporary container" means a receptacle for cremated remains usually made of cardboard, plastic, or similar material designed to hold the cremated remains until an urn or other permanent container is acquired.

(28) "Unlawful conduct" is as defined in Sections 58-1-501 and 58-9-501. (29) "Unprofessional conduct" is as defined in Sections 58-1-501 and 58-9-502. (30) "Urn" means a receptacle designed to permanently encase the cremated remains. Part 2. Board 58-9-201. Board. (1) There is created the Board of Funeral Service consisting of: (a) four funeral service directors who own, have an ownership interest in,

or have management responsibilities for a funeral service establishment; (b) one preneed funeral arrangement sales agent, who does not have an

ownership interest in a funeral service establishment; and (c) two members from the general public who have no association with the

funeral service profession. (2) The board shall be appointed and serve in accordance with Section 58-1-201 . (3) (a) The duties and responsibilities of the board shall be in accordance with

Sections 58-1-202 and 58-1-203. (b) The board shall designate one of its members on a permanent or rotating

basis to: (i) assist the division in reviewing complaints concerning the

unlawful or unprofessional conduct of a licensee; and (ii) advise the division in its investigation of these complaints. (4) A board member who has, under Subsection (3), reviewed a complaint or advised

the division in its investigation may be disqualified from participating with the board when the board serves as a presiding officer of an administrative proceeding concerning the complaint.

Part 3. Licensing 58-9-301. Licensure required - License classifications. (1) A license is required to engage in the practice of funeral service, except as

specifically provided in Sections 58-1-307 and 58-9-305. (2) The division shall issue to a person who qualifies under this chapter a

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license in the classification of: (a) funeral service director; (b) funeral service intern; (c) funeral service establishment; or (d) preneed funeral arrangement sales agent. 58-9-302. Qualifications for licensure. (1) Each applicant for licensure as a funeral service director shall: (a) submit an application in a form prescribed by the division; (b) pay a fee as determined by the department under Section 63J-1-504 ; (c) be of good moral character in that the applicant has not been convicted

of: (i) a first or second degree felony; (ii) a misdemeanor involving moral turpitude; or (iii) any other crime that when considered with the duties and

responsibilities of a funeral service director is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;

(d) have obtained a high school diploma or its equivalent or a higher education degree;

(e) have obtained an associate degree, or its equivalent, in mortuary science from a school of funeral service accredited by the American Board of Funeral Service Education or other accrediting body recognized by the U.S. Department of Education;

(f) have completed not less than 2,000 hours and 50 embalmings, over a period of not less than one year, of satisfactory performance in training as a licensed funeral service intern under the supervision of a licensed funeral service director; and

(g) obtain a passing score on examinations approved by the division in collaboration with the board.

(2) Each applicant for licensure as a funeral service intern shall: (a) submit an application in a form prescribed by the division; (b) pay a fee as determined by the department under Section 63J-1-504; (c) be of good moral character in that the applicant has not been convicted

of: (i) a first or second degree felony; (ii) a misdemeanor involving moral turpitude; or (iii) any other crime that when considered with the duties and

responsibilities of a funeral service intern is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;

(d) have obtained a high school diploma or its equivalent or a higher education degree; and

(e) obtain a passing score on an examination approved by the division in collaboration with the board.

(3) Each applicant for licensure as a funeral service establishment and each funeral service establishment licensee shall:

(a) submit an application in a form prescribed by the division; (b) pay a fee as determined by the department under Section 63J-1-504; (c) have in place: (i) an embalming room for preparing dead human bodies for burial or

final disposition, which may serve one or more facilities operated by the applicant;

(ii) a refrigeration room that maintains a temperature of not more than 40 degrees fahrenheit for preserving dead human bodies prior to burial or final disposition, which may serve one or more facilities operated by the applicant; and

(iii) maintain at all times a licensed funeral service director who is responsible for the day-to-day operation of the funeral service establishment and who is personally available to perform the services for which the license is required;

(d) affiliate with a licensed preneed funeral arrangement sales agent or funeral service director if the funeral service establishment sells preneed funeral arrangements;

(e) file with the completed application a copy of each form of contract or agreement the applicant will use in the sale of preneed funeral arrangements; and

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(f) provide evidence of appropriate licensure with the Insurance Department if the applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or in part by an insurance policy or product to be sold by the provider or the provider's sales agent.

(4) Each applicant for licensure as a preneed funeral arrangement sales agent shall:

(a) submit an application in a form prescribed by the division; (b) pay a fee as determined by the department under Section 63J-1-504; (c) be of good moral character in that the applicant has not been convicted

of: (i) a first or second degree felony; (ii) a misdemeanor involving moral turpitude; or (iii) any other crime that when considered with the duties and

responsibilities of a preneed funeral sales agent is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;

(d) have obtained a high school diploma or its equivalent or a higher education degree;

(e) have obtained a passing score on an examination approved by the division in collaboration with the board;

(f) affiliate with a licensed funeral service establishment; and (g) provide evidence of appropriate licensure with the Insurance Department

if the applicant intends to engage in the sale of any preneed funeral arrangements funded in whole or in part by an insurance policy or product.

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58-9-303. Term of license - Expiration - Renewal. (1) (a) The division shall issue each license under this chapter in accordance

with a two-year renewal cycle established by rule. (b) The division may by rule extend or shorten a renewal cycle by as much as

one year to stagger the renewal cycles it administers. (2) Notwithstanding Subsection (1), a person who has once held a license as a

funeral service intern and has not qualified for licensure as a funeral service director may be issued a subsequent funeral service intern license for only one additional two-year term upon the specific approval of the division in collaboration with the board.

(3) At the time of renewal, the funeral service director licensee shall show satisfactory evidence of completion of continuing education as required under Section 58-9-304.

(4) Each license automatically expires on the expiration date shown on the license unless the licensee renews it in accordance with Section 58-1-308.

(5) (a) Except as otherwise provided in Subsections (5)(b) and (c), the division may take action against the license of a funeral service establishment that does not have a licensed funeral service director.

(b) If a licensed funeral service director dies and leaves the funeral service establishment as part of the assets of the funeral service director's estate:

(i) the personal representative of the funeral service director's estate may operate the funeral service establishment under the license, or renewals of the license, for not more than two years from the date of the funeral service director's death without meeting the qualifications of an applicant and without having a licensed funeral service director; but

(ii) Subsection (5)(b)(i) does not allow an unlicensed person to perform a function that requires performance by a funeral service director licensed under this chapter.

(c) If the funeral service director of a licensed funeral service establishment terminates employment with the establishment, the establishment has 90 days to hire a new licensed funeral service director before action may be taken against the license under Subsection (5)(a).

58-9-304. Continuing education. (1) As a condition precedent for license renewal, each funeral service director

shall, during each two-year licensure cycle or other cycle defined by rule, complete 20 hours of qualified continuing professional education in accordance with standards defined by rule.

(2) If a renewal cycle is extended or shortened under Section 58-9-303 , the continuing education hours required for license renewal under this section shall be increased or decreased proportionally.

58-9-305. Exemptions from licensure.

In addition to the exemptions from licensure in Section 58-1-307 , a person may engage in the following acts included within the definition of the practice of funeral service, subject to the stated circumstances and limitations, without being licensed under this chapter:

(1) transportation of a dead human body in accordance with other applicable state and federal laws;

(2) ambulance or other emergency transportation of a dead human body; (3) the sale of any of the following that is delivered to the buyer or the buyer's

designee within 90 days after the day of the sale: (a) funeral merchandise; (b) headstones; or (c) other memorial merchandise; (4) the performance of funeral, graveside, or memorial services by: (a) a member of the clergy; (b) a member of the decedent's family; or (c) any other recognized individual; (5) assisting a Utah licensed funeral service director regarding disasters or

special emergencies by individuals licensed in other states as funeral service

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directors or embalmers; (6) activities of an unlicensed individual employed by a funeral service

establishment involving arrangement for a funeral service or the sale of funeral merchandise if the binding contract is reviewed, approved, and signed in behalf of the funeral service establishment by a licensed funeral service director; and

(7) nonprofessional tasks or activities which: (a) do not require independent professional judgment; and (b) are required of persons employed by a funeral service establishment

under the supervision of a funeral service director. 58-9-306. License by endorsement.

The division may issue a license by endorsement under this chapter to a person who (1) provides documentation that the funeral service director's current licensure

is active, in good standing, and free from any disciplinary action; (2) submit an application on a form provided by the division; (3) pays a fee determined by the department; (4) is of good moral character in that the person has not been convicted of: (a) a first or second degree felony; (b) a misdemeanor involving moral turpitude; or (c) any other crime that when considered with the duties and

responsibilities of the license for which the person is applying is considered by the division and the board to indicate that the best interests of the public are not served by granting the applicant a license;

(5) has completed five years of lawful and active practice as a licensed funeral service director and embalmer within the ten years immediately preceding the application for licensure by endorsement;

(6) has passed a national examination determined by the division; and (7) has demonstrated competency of the laws and the rules of the state as

determined by the division. 58-9-307. Supervision of funeral service intern. (1) A person seeking licensure as a funeral service intern shall submit as a part

of the application for a license: (a) the name of the licensed funeral service director who has agreed to

supervise all duties performed by the applicant as an intern; and (b) the name of the licensed funeral service establishment at which the

training and supervision shall take place. (2) A licensed funeral service director may supervise only one licensed funeral

service intern at one time. (3) (a) Within 30 days after the day on which the supervisor-supervisee

relationship between a licensed funeral service director and a licensed funeral service intern terminates, the funeral service director shall furnish to the division a report of the performance of the funeral service intern.

(b) The report shall be in form and content as prescribed by the division. (4) (a) A licensed funeral service intern shall notify the division of any

change in the intern's supervising funeral service director. (b) The supervising funeral service director shall submit to the division,

in accordance with Subsection (3), a report of the funeral service intern's performance.

(5) The licensed funeral service director is responsible for supervision of all of the duties and functions performed by the funeral service intern throughout the entire internship period.

Part 4. License Denial and Discipline

58-9-401. Grounds for denial of license - Disciplinary proceedings.

Grounds for refusing to issue a license to an applicant, for refusing to renew the license of a licensee, for revoking, suspending, restricting, or placing on probation the license of a licensee, for issuing a public or private reprimand to a licensee, and for issuing a cease and desist order shall be in accordance with Section 58-1-401.

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Part 5. Unlawful and Unprofessional Conduct - Penalties 58-9-501. Unlawful conduct. "Unlawful conduct" includes: (1) doing any of the following to prepare a dead human body for disposition unless

licensed as a funeral service director or a funeral service intern: (a) embalming; (b) calcinating; (c) pulverizing; (d) cremating; or (e) using any method that invades a dead human body; (2) using the title "funeral service director," "funeral service intern," "preneed

funeral service sales agent," or "funeral service establishment" unless licensed under this chapter;

(3) engaging in, providing, or agreeing to provide funeral arrangements to be provided under a preneed funeral arrangement without first obtaining a license as a funeral service establishment under this chapter;

(4) engaging in selling, representing for sale, or in any other way offering to sell any contract under which preneed funeral arrangements are to be provided without first obtaining a license under this chapter as:

(a) a preneed funeral arrangement sales agent; or (b) a funeral service director; and (5) failing to comply with Section 58-9-702. 58-9-502. Unprofessional conduct. (1) "Unprofessional conduct" includes: (a) the failure of a funeral service director to accurately document,

report, and supervise the activities of a funeral service intern; (b) knowingly soliciting the sale of any funeral service or funeral

merchandise for a person whose death occurred or was imminent prior to the solicitation;

(c) paying or offering to pay a commission or anything of value to secure deceased human remains for a funeral service or disposition to:

(i) medical personnel; (ii) a nursing home; (iii) a nursing home employee; (iv) a hospice; (v) a hospice employee; (vi) clergy; (vii) a government official; or (viii) any other third party; and (d) failure to provide the following current information to the division: (i) a licensee's business address; (ii) a licensee's primary residence; (iii) a funeral service establishment's funeral service director; or (iv) a supervising funeral service director's funeral service intern's

name. (2) "Unprofessional conduct" does not include: (a) general advertising directed to the public at large; or (b) responding to a notification of death from: (i) medical personnel; (ii) a nursing home; (iii) a nursing home employee; (iv) a hospice; (v) a hospice employee; (vi) clergy; (vii) a government official; or (viii) any authorized representative of the family of the deceased

person. 58-9-503. Penalty for unlawful conduct. (1) A person who violates the unlawful conduct provisions defined in Subsections

58-9-501(1) through (4) is guilty of a class A misdemeanor. (2) A person who violates the unlawful conduct provision defined in Subsection 58-

9-501(5) may be prosecuted under Title 76, Chapter 6, Part 4, Theft.

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58-9-504. Authority to promulgate rules.

In addition to the authority granted under Section 58-1-106, in accordance with Title 63G,Chapter 3, Utah Administrative Rulemaking Act, the division in collaboration with the board shall establish by rule:

(1) the minimum requirements for a licensed funeral establishment for the following:

(a) physical facilities; (b) equipment; (c) instruments; and (d) supplies; (2) license cycles under Section 58-9-303; (3) standards to protect the interests of buyers and potential buyers of preneed

funeral arrangements under Section 58-9-701; and (4) standards for preneed funeral arrangement trusts. 58-9-505. Disclosure requirements.

A licensee under this chapter shall disclose information in accordance with regulations of the Federal Trade Commission and rules adopted by the division pursuant to this chapter.

58-9-506. Inspection - Right to access.

A licensed funeral service establishment is subject to inspection during normal business hours to determine compliance with the laws of Utah by:

(1) any authorized representative of the division; or (2) any authorized representative of a local or state health department.

Part 6. Control of Disposition 58-9-601. Advance directions. (1) A person may provide written directions meeting the requirements of Subsection

(2)to direct the preparation, type, and place of the person's disposition, including:

(a) designating a funeral service establishment; (b) providing directions for burial arrangements; or (c) providing directions for cremation arrangements. (2) The written directions described in Subsection (1) shall contain: (a) the name and address of the decedent; (b) written directions regarding the decedent's disposition; (c) the signature of the decedent; (d) the signatures of at least two unrelated individuals, each of whom

signed within a reasonable time after witnessing the signing of the form by the decedent; and

(e) the date or dates the written directions were prepared and signed. (3) A funeral service director shall carry out the written directions of the

decedent prepared under this section to the extent that: (a) the directions are lawful; and (b) the decedent has provided resources to carry out the directions. (4) Directions for disposition contained in a will shall be carried out pursuant

to Subsection (3) regardless of: (a) the validity of other aspects of the will; or (b) the fact that the will may not be offered or admitted to probate until a

later date. (5) A person may change or cancel written directions prepared under this section

at anytime prior to the person's death by providing written notice to all applicable persons, including:

(a) if the written directions designate a funeral service establishment or funeral service director, the funeral service establishment or funeral service director designated in the written directions; and

(b) if the written directions are contained in a will, the personal representative as defined in Section 75-1-201.

58-9-602. Determination of control of disposition.

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The right and duty to control the disposition of a deceased person, including the location, manner and conditions of the disposition, and arrangements for funeral goods and services to be provided vest in the following degrees of relationship in the order named, provided the person is at least 18 and is mentally competent:

(1) a person designated: (a) in a written instrument, excluding a power of attorney that terminates

at death under Sections 75-5-501 and 75-5-502, if the written instrument contains:

(i) the name and address of the decedent; (ii) the name and address of the person designated under this

Subsection (1); (iii) directions that the person designated in this Subsection (1) is

authorized to carry out the disposition of the decedent's remains; (iv) the signature of the decedent; (v) the signatures of at least two unrelated individuals who are not

the person designated under this Subsection (1), each of whom signed within a reasonable time after witnessing the signing of the form by the decedent; and

(vi) the date or dates the written instrument was prepared and signed; or

(b) by a service member while serving in a branch of the United States Armed Forces as defined in 10 U.S.C. Sec. 1481 in a federal Record of Emergency Data, DD Form 93 or subsequent form;

(2) the surviving, legally recognized spouse of the decedent; (3) (a) the sole surviving child of the decedent, or if there is more than one

child of the decedent, the majority of the surviving children; (b) less than one-half of the surviving children are vested with the rights

of this section if they have used reasonable efforts to notify all other surviving children of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving children;

(4) the surviving parent or parents of the decedent, and if one of the surviving parents is absent, the remaining parent is vested with the rights and duties of this section after reasonable efforts have been unsuccessful in locating the absent surviving parent;

(5) (a) the surviving brother or sister of the decedent, or if there is more than one sibling of the decedent, the majority of the surviving siblings;

(b) less than the majority of surviving siblings are vested with the rights and duties of this section if they have used reasonable efforts to notify all other surviving siblings of their instructions and are not aware of any opposition to those instructions on the part of more than one-half of all surviving siblings;

(6) the person in the classes of the next degree of kinship, in descending order, under the laws of descent and distribution to inherit the estate of the decedent, and if there is more than one person of the same degree, any person of that degree may exercise the right of disposition;

(7) any public official charged with arranging the disposition of deceased persons;

(8) in the absence of any person under Subsections (1) through (7), any other person willing to assume the responsibilities to act and arrange the final disposition of the decedent's remains, including the personal representative of the decedent's estate or the funeral service director with the custody of the body, after attesting in writing that a good faith effort has been made to no avail to contact the individuals referred to in Subsections (1) through (7).

58-9-603. Loss of right of disposition. (1) As used in this section, "estranged" means a physical and emotional separation

from the decedent at the time of death which has existed for a period of time that clearly demonstrates an absence of affection, trust, and regard for the decedent.

(2) A person who has a right of disposition under this chapter forfeits that right and the right is passed on the next qualifying person as listed in Section 58-9-602 under the following circumstances:

(a) the person is charged with a first or second degree murder or voluntary manslaughter in connection with the decedent's death, and the charges

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are known by the funeral service director, except that if the charges against the person are dropped or if the person is acquitted of the charges, the right of disposition is returned to the person;

(b) the person does not exercise the person's right of disposition within three days of notification of the decedent's death or within five days of the decedent's death, whichever is earlier; or

(c) if a probate court under Section 58-9-605 determines that the person entitled to the right of disposition and the decedent were estranged at the time of death.

58-9-604. Control by funeral service director.

A funeral service director may control the disposition of the decedent and recover reasonable charges if:

(1) (a) the funeral service director has actual knowledge that none of the persons described in Section 58-9-602 exist; or

(b) after reasonable efforts the funeral service director is not able to contact any of the persons described in Section 58-9-602; and

(2) the appropriate public official charged with arranging the disposition of deceased persons fails to assume responsibility for disposition of the decedent within 36 hours after receiving written notice from the funeral service director.

58-9-605. Disputes. (1) Notwithstanding Sections 58-9-601 through 58-9-604, the probate court for the

county in which the decedent resided may: (a) award the right of disposition to the person determined by the court to

be the most fit and appropriate to carry out the right of disposition; and

(b) make decisions regarding the decedent's remains if those sharing the right of disposition cannot agree.

(2) The following provisions apply to the probate court's determination under this section:

(a) if the persons holding the right of disposition are two or more persons with the same relationship to the decedent, and they cannot, by majority vote, make a decision regarding the disposition of the decedent's remains, any of those persons or a funeral service director with custody of the remains may petition the probate court to make the decision;

(b) in making a determination the probate court shall consider: (i) the reasonableness and practicality of the proposed funeral

arrangements and disposition; (ii) the degree of the personal relationship between the decedent and

each of the persons claiming the right of disposition; (iii) the desires of the person or persons who are ready, able, and

willing to pay the cost of the funeral arrangements and disposition;

(iv) the convenience and needs of other families and friends wishing to pay their respects;

(v) the desires of the decedent; and (vi) the degree to which the funeral arrangements would allow maximum

participation by all who wish to pay their respects. (3) (a) In a dispute regarding the right of disposition, until the funeral

service director receives a court order or other written agreement signed by the parties to the dispute that decides the final disposition of the remains, the funeral service director is not liable for refusing to:

(i) accept the decedent's remains; (ii) inter or otherwise dispose of the decedent's remains; or (iii) complete the arrangements for the final disposition of the

decedent's remains. (b) If, during a dispute, a funeral service director retains a decedent's

remains for final disposition, the director may: (i) embalm or refrigerate and shelter the body, or both, to preserve

it while awaiting the final decision of the probate court; and (ii) add the costs incurred under Subsection (3)(b)(i) to the final

disposition costs. (4) The legal fees and court costs incurred by a funeral service director for

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petitioning the probate court under Subsection (2)(a) may be added to the final disposition costs.

(5) (a) This section does not require or impose a duty upon a funeral service director to bring an action under Subsection (2)(a).

(b) A funeral service director may not be held criminally or civilly liable for failing to bring an action under Subsection (2)(a).

(6) Except to the degree that it may be considered by the probate court under Subsection (2)(b)(iii), the fact that a person has paid for or agreed to pay for all or part of the decedent's funeral arrangements and final disposition does not give that person a higher priority to the right of disposition that the person would otherwise have.

(7) The personal representative of the decedent's estate does not, by virtue of being the personal representative, have a greater claim to the right of disposition than the personal representative would otherwise have.

58-9-606. Right to rely - Immunity. (1) A person signing a funeral service agreement, cremation authorization form, or

other authorization for a decedent's disposition warrants the truthfulness of the facts set forth in the document, including the identity of the decedent and the person's authority to order the disposition.

(2) A funeral service establishment has the right to rely on a contract or authorization executed under Subsection (1) and may carry out the instructions of the person whom its funeral service director reasonably believes holds the right of disposition.

(3) A funeral service directors incurs no civil or criminal liability for failure to contact or independently investigate the existence of any next-of-kin or relative of the decedent.

(4) If there are at least two persons in the nearest class of the next-of-kin who are equal in priority and a funeral service director has no knowledge of an objection by other members of the class, the funeral service director may rely on and act according to the instructions of the first person in the class to make funeral and disposition arrangements.

(5) A funeral service establishment or funeral service director who relies in good faith on the instructions of a person claiming the right of disposition under this part is immune from civil and criminal liability and disciplinary action in carrying out the disposition of a decedent's remains in accordance with that person's instructions.

58-9-607. Authorization to cremate - Penalties for removal of items from human remains. (1) Except as otherwise provided in this section, a funeral service establishment

may not cremate human remains until it has received: (a) a cremation authorization form signed by an authorizing agent; (b) a completed and executed burial transit permit or similar document, as

provided by state law, indicating that human remains are to be cremated; and

(c) any other documentation required by the state, country, or municipality. (2) (a) The cremation authorization form shall contain, at a minimum, the

following information: (i) the identity of the human remains and the time and date of death,

including a signed declaration of visual identification of the deceased or refusal to visually identify the deceased;

(ii) the name of the funeral director and funeral service establishment that obtained the cremation authorization;

(iii) notification as to whether the death occurred from a disease declared by the department of health to be infectious, contagious, communicable, or dangerous to the public health;

(iv) the name of the authorizing agent and the relationship between the authorizing agent and the decedent;

(v) a representation that the authorizing agent has the right to authorize the cremation of the decedent and that the authorizing agent is not aware of any living person with a superior or equal priority right to that of the authorizing agent, except that if there is another living person with a superior or equal priority right, the form shall contain a representation that the authorizing agent has:

(A) made reasonable efforts to contact that person;

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(B) been unable to do so; and (C) no reason to believe that the person would object to the

cremation of the decedent; (vi) authorization for the funeral service establishment to cremate the

human remains; (vii) a representation that the human remains do not contain a pacemaker

or other material or implant that may be potentially hazardous or cause damage to the cremation chamber or the person performing the cremation;

(viii) the name of the person authorized to receive the cremated remains from the funeral service establishment;

(ix) the manner in which the final disposition of the cremated remains is to take place, if known;

(x) a listing of each item of value to be delivered to the funeral service establishment along with the human remains, and instructions as to how each item should be handled;

(xi) the signature of the authorizing agent, attesting to the accuracy of all representations contained on the authorization form;

(xii) if the cremation authorization form is being executed on a preneed basis, the form shall contain the disclosure required for preneed programs under this chapter; and

(xiii) except for a preneed cremation authorization, the signature of the funeral director of the funeral service establishment that obtained the cremation authorization.

(b) (i) The individual referred to in Subsection (2)(a)(xiii) shall execute the funeral authorization form as a witness and is not responsible for any of the representations made by the authorizing agent.

(ii) The funeral director or the funeral service establishment shall warrant to the crematory that the human remains delivered to the funeral service establishment have been positively identified as the decedent listed on the cremation authorization form by the authorizing agent or a designated representative of the authorizing agent.

(iii) The authorizing agent or the agent's designee may make the identification referred to in Subsection (2)(b)(ii) in person or by photograph.

(3) (a) A funeral service establishment may not accept unidentified human remains for cremation.

(b) If a funeral service establishment takes custody of a cremation container subsequent to the human remains being placed within the container, it can rely on the identification made before the remains were placed in the container.

(c) The funeral service establishment shall place appropriate identification on the exterior of the cremation container based on the prior identification.

(4) (a) A person who removes or possesses dental gold or silver, jewelry, or mementos from human remains:

(i) with purpose to deprive another over control of the property is guilty of an offense and subject to the punishments provided in Section 76-6-412;

(ii) with purpose to exercise unauthorized control and with intent to temporarily deprive another of control over the property is guilty of an offense and subject to the punishments provided in Section 76-6-404.5; and

(iii) under circumstances not amounting to Subsection (4)(a)(i) or (ii) and without specific written permission of the individual who has the right to control those remains is guilty of a class B misdemeanor.

(b) The fact that residue or any unavoidable dental gold or dental silver or other precious metals remain in the cremation chamber or other equipment or a container used in a prior cremation is not a violation of Subsection (4)(a).

58-9-608. Recordkeeping. (1) (a) A funeral service establishment shall furnish to the person who delivers

human remains to the establishment for cremation a receipt signed by a

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representative of the establishment and the person making the delivery, showing:

(i) the date and time of the delivery; (ii) the type of casket or alternative container delivered; (iii) the name of the person from whom the human remains were received; (iv) the name of the funeral establishment or other entity with whom

the person making the delivery is affiliated; (v) the name of the person who received the human remains on behalf of

the funeral service establishment; and (vi) the name of the decedent. (b) The funeral service establishment shall keep a copy of the receipt in

its permanent records for a period of seven years. (2) (a) Upon release of cremated remains, a funeral service establishment shall

furnish to the person who receives the cremated remains a receipt signed by a representative of the funeral service establishment and the person who receives the remains, showing:

(i) the date and time of the release; (ii) the name of the person to whom the cremated remains were released;

and (iii) if applicable: (A) the name of the funeral establishment, cemetery, or other

entity with whom the person receiving the cremated remains is affiliated;

(B) the name of the person who released the cremated remains on behalf of the funeral service establishment; and

(C) the name of the decedent. (b) (i) The receipt shall contain a representation from the person

receiving the cremated remains confirming that the remains will not be used for any improper purpose.

(ii) Upon release of the cremated remains, the person to whom the remains were released may transport them in any manner in the state, without a permit, and dispose of them in accordance with this chapter.

(c) The funeral service establishment shall retain a copy of the receipt in its permanent records for a period of seven years.

(3) (a) The funeral service establishment shall maintain at its place of business a permanent record of each cremation that took place at its crematory.

(b) The permanent record shall contain: (i) the name of the decedent; (ii) the date of cremation; (iii) the final disposition of the cremated remains; and (iv) any other document required by this chapter. 58-9-609. Cremation containers. (1) (a) Except as provided in Subsection (2), a funeral service establishment

may not make or enforce a rule requiring that human remains be: (i) placed in a casket before cremation; or (ii) cremated in a casket. (b) A funeral service establishment may not refuse to accept human remains

for cremation because they are not in a casket. (2) (a) Human remains must be delivered to a crematory in a casket or cremation

container. (b) Human remains may not be removed from a casket or cremation container

once delivered to the crematory, and the casket or cremation container shall be cremated with the human remains, unless:

(i) the funeral service establishment has been provided with written instructions to the contrary by the authorizing agent; or

(ii) the funeral service establishment does not accept metal caskets for cremation.

58-9-610. Cremation procedures. (1) A funeral service establishment may not cremate human remains until the

funeral service establishment: (a) completes and files a death certificate with the office of vital

statistics and the county health department as indicated on the regular

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medical certificate of death or the coroner's certificate; and (b) complies with the provisions of Section 26-4-29. (2) (a) A funeral service establishment may not cremate human remains with a

pacemaker or other battery powered potentially hazardous implant in place.

(b) (i) An authorizing agent for the cremation of human remains is responsible for informing the funeral service establishment in writing on the cremation authorization form about the presence of a pacemaker or other battery-powered, potentially hazardous implant in the human remains to be cremated.

(ii) (A) Except as provided in Subsection (2)(b)(ii)(B), the authorizing agent is responsible to ensure that a pacemaker or other battery-powered, potentially hazardous implant is removed prior to cremation.

(B) If the authorizing agent informs the funeral service establishment of the presence of a pacemaker or other battery-powered, potentially hazardous implant under Subsection (2)(b)(i), and the funeral service establishment fails to have the pacemaker or other battery-powered, potentially hazardous implant removed prior to cremation, then the funeral service establishment is liable for all resulting damages.

(3) Only authorized persons are permitted in the crematory while human remains are in the crematory area awaiting cremation, being cremated, or being removed from the cremation chamber.

(4) (a) Simultaneous cremation of the human remains of more than one person within the same cremation chamber or processor is not allowed, unless the funeral service established has received specific written authorization to do so from the authorizing agent of each person to be cremated.

(b) The written authorization, described in Subsection (4)(a), exempts the funeral license establishment from liability for co-mingling of the cremated remains during the cremation process.

(5) A funeral service establishment shall: (a) verify the identification of human remains as indicated on a cremation

container immediately before placing the human remains in the cremation chamber;

(b) attach a metal identification tag to the cremation container; (c) remove the identification tag from the cremation container; and (d) place the identification tag near the cremation chamber control where

the identification tag shall remain until the cremation process is complete.

(6) Upon completion of a cremation, the funeral service establishment shall: (a) in so far as is possible, remove all of the recoverable residue of the

cremation process from the cremation chamber; (b) separate all other residue form the cremation process from remaining

bone fragments, in so far as possible, and process the bone fragments as so to reduce them to unidentifiable particles; and

(c) remove anything other than the unidentifiable bone particles from the cremated residuals, as far as is possible, and dispose of that material.

(7) (a) A funeral service establishment shall pack cremated remains, including the identification tag described in Subsection (5), in a temporary container or urn ordered by the authorizing agent.

(b) The container or urn shall be packed in clean packing materials and not be contaminated with any other object unless otherwise directed by the authorizing agent.

(c) If the cremated remains cannot fit within the designated temporary container or urn, the funeral service establishment shall:

(i) return the excess to the authorizing agent or the agent's representative in a separate container; and

(ii) mark both containers or urns on the outside with the name of the deceased person and an indication that the cremated remains of the name decedent are in both containers or urns.

(8) (a) If the cremated remains are to be shipped, then the funeral service establishment shall pack the designated temporary container or urn in a suitable, sturdy container.

(b) The funeral service establishment shall have the remains shipped only by a method that:

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(i) has an available internal tracing system; and (ii) provides a receipt signed by the person accepting delivery. 58-9-611. Disposition of cremated remains. (1) (a) An authorizing agent shall provide the person with whom cremation

arrangements are made with a signed statement specifying the final disposition of the cremated remains, if known.

(b) The funeral service establishment shall retain a copy of the statement. (2) (a) The authorizing agent is responsible for the disposition of the cremated

remains. (b) If the authorizing agent or the agent's representative has not specified

the ultimate disposition of or claimed the cremated remains within 60 days from the date of the cremation, the funeral service establishment may dispose of the remains in any manner permitted by law, except scattering.

(c) The authorizing agent shall reimburse the funeral service establishment for all reasonable costs incurred in disposing of the cremated remains under Subsection (2)(b).

(d) The person or entity disposing of cremated remains under this section: (i) shall make and keep a record of the disposition of the remains;

and (ii) is discharged from any legal obligation or liability concerning

the remains once the disposition has been made. (e) Subsection (2)(d)(ii) applies to cremated remains in the possession of a

funeral service establishment or other responsible party as of May 5, 23008, or any time after that date.

(3) (a) An authorizing agent may direct a funeral service establishment to dispose of or arrange for the disposition of cremated remains:

(i) in a crypt, niche, grave, or scattering garden located in a dedicated cemetery;

(ii) by scattering them over inhabited public land, the sea, or other public waterways subject to health and environmental laws and regulations; or

(iii) in any manner on the private property of a consenting owner. (b) If cremated remains are to be disposed of on private property, other

than dedicated cemetery property, the authorizing agent shall provide the funeral service establishment with the written consent of the property owner prior to disposal of the remains.

(c) In order to scatter cremated remains under Subsection (3)(a)(ii) or (iii), the remains must be reduced to a particle size of one-eighth inch or less and removed from their closed container.

(4) A funeral service establishment may not release cremated remains for scattering under this section to the authorizing agent or the agent's designated representative until the funeral service establishment is given a receipt that shows the proper filing has bee made with the local registrar of births and deaths.

58-9-612. Limitation of liability. (1) An authorizing agent who signs a cremation authorization form warrants the

truthfulness of the facts set forth on the form, including: (a) the identity of the deceased whose remains are to be cremated; and (b) the authorizing agent's authority to order the cremation. (2) A funeral service establishment may rely upon the representations made by an

authorizing agent under Subsection (1). (3) The authorizing agent is personally and individually liable for all damage

resulting from a misstatement or misrepresentation made under Subsection (1). (4) (a) A funeral service establishment may arrange for the cremation of and

cremate human remains upon receipt of a cremation authorization form signed by an authorizing agent.

(b) A funeral service establishment that arranges a cremation, cremates human remains, or releases or disposes of cremated human remains pursuant to a cremation authorization form is not liable for an action it takes pursuant to that authorization.

(5) A funeral service establishment is not responsible or liable for any valuables delivered to the establishment with human remains to be cremated.

(6) A funeral service establishment may refuse to arrange for a cremation, to

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accept human remains for cremation, or to perform a cremation; (a) if the establishment is aware of a dispute concerning the cremation of

the human remains and it has not received a court order or other suitable confirmation that the dispute has been resolved;

(b) if the establishment has a reasonable basis for questioning any of the representations made by an authorizing agent; or

(c) for any other lawful reason. (7) (a) If a funeral service establishment is aware of a dispute concerning the

release or disposition of cremated remains in its possession, the establishment may refuse to release the remains until:

(i) the dispute has been resolved; or (ii) it has received a court order authorizing the release or

disposition of the remains. (b) A funeral service establishment is not liable for its refusal to release

or dispose of cremated remains in accordance with this Subsection (7).

Part 7. Preneed Funeral Arrangement Requirements 58-9-701. Preneed contract requirements. (1) (a) Every preneed funeral arrangement sold in Utah shall be evidenced by a

written contract. (b) The funeral service establishment shall maintain a copy of the contract

until five years after all of its obligations under the contract have been executed.

(2) Each preneed contract form shall: (a) be written in clear and understandable language printed in an easy-to-

read type size and style; (b) bear the preprinted name, address, telephone number, and license number

of the funeral service establishment obligated to provide the services under the contract terms;

(c) be sequentially numbered by contract form; (d) clearly identify that the contract is a guaranteed product contract; (e) provide that a trust is established in accordance with the provisions of

Section 58-9-702; (f) if the contract is funded by an insurance policy or product, provide

that the insurance policy or product is filed with the Insurance Department and meets the requirements of Title 31A, Insurance Code; and

(g) conform to other standards created by rule under Title 63G, Chapter 3, Utah Administrative Rulemaking Act, to protect the interests of buyers and potential buyers.

(3) A preneed contract shall provide for payment by the buyer in a form which may be liquidated by the funeral service establishment within 30 days after the day the funeral service establishment or sales agent receives the payment.

(4) A preneed contract may not be revocable by the funeral service establishment except:

(a) in the event of nonpayment; and (b) under terms and conditions clearly set forth in the contract. (5) (a) A preneed contract may not be revocable by the buyer or beneficiary

except: (i) in the event of: (A) a substantial contract breach by the funeral service

establishment; or (B) substantial evidence that the funeral service establishment

is or will be unable to provide the personal property or services to the beneficiary as provided under the contract; or

(ii) under terms and conditions clearly set forth in the contract. (b) The contract shall contain a clear statement of the manner in which

payments made on the contract shall be refunded to the buyer or beneficiary upon revocation by the beneficiary.

(6) (a) A preneed contract shall provide the buyer the option to require the funeral service establishment to furnish a written disclosure to a person who does not live at the same residence as the buyer.

(b) The buyer may choose: (i) a full disclosure containing a copy of the entire preneed

contract; (ii) a partial disclosure informing the recipient of:

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(A) the existence of a preneed contract; and (B) the name, address, telephone number, and license number of

the funeral service establishment obligated to provide the services under the preneed contract; or

(iii) not to require the funeral service establishment to furnish a written disclosure to another person.

58-9-702. Payments to be held in trust - Trustee qualifications. (1) All money representing payments for the purchase of a preneed funeral

arrangement shall be deposited by the provider or sales agent receiving the payment:

(a) within ten business days after the day on which the provider or sales agent receives the payment in the form of cash or cash equivalent; or

(b) within 35 calendar days after the day on which the provider or sales agent receives the payment in the form of a negotiable instrument.

(2) All money received under Subsection (1) shall be placed in a trust account naming as trustee a Utah financial institution authorized to engage in the trust business under Title 7,Chapter 5, Trust Business.

58-9-703. Trust agreement. (1) Each trust established by a funeral service establishment shall be

administered in accordance with a trust agreement conforming with: (a) the requirements of this chapter; (b) rules adopted with respect to this chapter; (c) the provisions of Title 75, Chapter 7, Utah Uniform Trust Code; and (d) all other state and federal laws applicable to trusts and trust

agreements. (2) Each trust agreement shall require that the funeral service establishment

maintain a copy of the trust agreement until five years after all of its obligations under the trust agreement have been executed or transferred.

(3) Each trust agreement shall require that the trustee: (a) separately account for each contract; and (b) separately record payments with respect to each contract made into the

corpus of the trust. (4) Each trust agreement shall provide for distributions from the trust in

accordance with the provisions of this chapter upon: (a) the death of the beneficiary; (b) revocation of the contract by the funeral service establishment upon

nonpayment by the buyer; or (c) revocation of the contract by the beneficiary or buyer. 58-9-704. Interest earned on trust funds.

Interest earned on trust funds shall be available for expenditure according to the following priority:

(1) to pay the reasonable trustee expenses of administering the trust within a maximum amount established by rule;

(2) to pay within a maximum amount established by rule under Section 58-9-504 the reasonable provider expenses associated with:

(a) the sale of the plan; (b) administering the collection, remittance, and accounting of the amount

of payments made into the corpus of the trust; and (c) reporting required with respect to those contracts: (i) that have been sold; and (ii) under which the provider is obligated; (3) to pay the costs of providing any of the following for which the provider is

obligated under a specific outstanding preneed funeral arrangement contract: (a) personal property; and (b) services at need; and (4) to pay the provider available funds left in the individual trust account

after: (a) all costs of providing personal property and services for which the

provider is obligated under the contract underlying the trust; or (b) (i) the contract is canceled as provided under this chapter; and (ii) all amounts payable to the buyer, beneficiary, or any other person

have been paid in full.

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58-9-705. Distribution of funds. (1) Interest earned on trust funds shall be available to the provider according to

the priority set forth in Section 58-9-704. (2) The amount of payments made into the corpus of the trust and any other amount

which has been paid into the corpus of the trust shall be paid to the provider in the amount credited to a specific account upon the event of one of the following:

(a) the death of the beneficiary which shall be demonstrated to the trustee by the provider by furnishing to the trustee:

(i) a request for payment from the trust; and (ii) a certified copy of the death certificate of the beneficiary; or (b) revocation of the preneed funeral arrangement contract by either the

provider or the buyer according to the terms and conditions of the contract, which shall be demonstrated to the trustee by the provider by furnishing to the trustee satisfactory evidence that:

(i) the contract has been revoked; and (ii) the provider has paid all funds due to the buyer or beneficiary. (3) Upon an order of a court having jurisdiction, all amounts that have been paid

into the corpus of the trust shall be paid to the buyer or beneficiary in the event of:

(a) a judgment to the benefit of a buyer or beneficiary upon a finding that: (i) the provider is in substantial breach of the contract; or (ii) there is substantial evidence that the provider is or will be

unable to provide the personal property or services to the beneficiary under the contract;

(b) a judgment of bankruptcy against the provider; or (c) a finding by the court that determines the funds should be rightfully

returned to the buyer or beneficiary. 58-9-706. Trust funds and insurance reports. (1) (a) Each funeral service establishment shall maintain an annual report of

preneed trust funds and insurance. (b) The report shall contain: (i) the name of the trustees with which the funeral service

establishment has trust funds on deposit; and (ii) the amount remaining on deposit in the trust fund on: (A) December 31 of the preceding year; or (B) another annual reporting period as the division may

establish. 58-9-707. Records of trustee - Contents.

(1) The trustee shall keep an orderly record of all agreements. (2) The record shall contain: (a) the name and address of the person making a payment; (b) the date and the amount of each payment made; (c) the date and amount of each withdrawal and to whom paid; and (d) the name of the bank or trust company depository. 58-9-708. Audits. (1) (a) The division may at any time: (i) audit records of the provider; and (ii) inspect records of the provider. (b) The provider or trustee shall make available to the division for

examination, inspection, or auditing all records pertaining to the accounts relating to:

(i) any contract sold under this chapter; and (ii) any trust established under this chapter. (2) (a) The director may employ experts from outside the division if special

need exists to perform examinations, inspections, and audits under this section.

(b) The provider shall be responsible for payment to the division of all reasonable and necessary costs related to the employment of experts under this section.

20

FUNERAL SERVICES LICENSING ACT

Title 58, Chapter 9 Utah Code Annotated 1953

As Amended by Session Laws of Utah 2010

Issued May 11, 2010

1

R156. Commerce, Occupational and Professional Licensing. R156-9. Funeral Service Licensing Act Rule. R156-9-101. Short title. This rule shall be known as the "Funeral Service Licensing Act Rule". R156-9-102. Definitions. In addition to the definitions in Title 58, Chapters 1 and 9, as defined or used in this rule: (1) "Contract" means a guaranteed preneed funeral arrangement contract. (2) "Funeral service establishment" is defined in Subsections 58-9-102(12)(a)(i) and (ii), and (b)(i) and (ii). (3) "Guaranteed product contract" means a contract wherein goods or services are selected which will be provided at the time of need for the consideration specified in the contract regardless of the market price at the time of need. (4) "Recipient of goods and services" is synonymous with "beneficiary" as defined in Subsection 58-9-102(1), and is used herein to avoid confusion with various common meanings of the term "beneficiary". (5]) "Unprofessional conduct" as defined in Title 58, Chapters 1 and 9, is further defined in accordance with Subsection 58-1-203(1)(e) in Section R156-9-501. R156-9-103. Authority - Purpose. This rule is adopted by the Division under the authority of Subsection 58-1-106(1)(a) to enable the Division to administer Title 58, Chapter 9. R156-9-104. Organization - Relationship to Rule R156-1. The organization of this rule and its relationship to Rule R156-1 is as described in Section R156-1-107. R156-9-302a. Qualifications for Licensure - Examination Requirements. In accordance with Subsections 58-1-203(1)(g) and 58-1-301(3), the qualifications for licensure in Subsections 58-9-302(1)(g), 58-9-302(2)(e), 58-9-302(4)(e) and 58-9-306(6) and (7) are defined, clarified, or established as follows: (1) An applicant for licensure as a funeral service director shall be required to pass the National Board Examinations (science and art sections) of the Conference of Funeral Service Examining Boards. The examination may be taken while the individual is enrolled in an approved funeral service school. (2) An applicant for licensure as a funeral service intern shall answer correctly all the law and rule questions in the open book examination contained in the application. (3) An applicant for licensure as a funeral service director, preneed sales agent or funeral service director by endorsement shall pass the Utah Funeral Service Law and Rule Examination with a score of at least 75%. (4) An individual who fails the Utah Funeral Service Law and Rule Examination may retake the failed examination: (a) no earlier than 30 days following any failure; (b) no more than three failures within a six month period; and (c) no earlier than six months following any failure thereafter. R156-9-303. Renewal Cycle - Procedures. (1) In accordance with Subsection 58-1-308(1), the renewal date for the two-year renewal cycle applicable to licenses under Title 58, Chapter 9 is established by rule in Section R156-1-308a. (2) Renewal procedures shall be in accordance with Section R156-1-308c. R156-9-304. Continuing Professional Education - Funeral Service Directors. In accordance with Subsections 58-1-203(1)(g) and 58-1-308(3)(b) and Section 58-9-304, the continuing education requirements for funeral service directors is defined, clarified or established as follows:

2

(1) Continuing professional education shall consist of 20 hours of qualified continuing professional education in each preceding two-year period of licensure or expiration of licensure. (2) If a renewal period is shortened or extended to effect a change of renewal cycle or if an initial license is granted for a period of less than two years, the continuing professional education hours required for that period shall be increased or decreased accordingly as a pro rata amount of the requirements of a two-year period. (3) The standards for qualified continuing professional education are: (a) College classes, seminars, or workshops sponsored by professional associations in areas related to funeral service will generally qualify for continuing professional education (CPE) if the education contributes to the professional competence and knowledge of the funeral service director and if the program complies with the standards set forth under Subsection (b). (b) CPE programs shall meet the following standards: (i) the course shall be formally organized and be primarily instructional; (ii) the sponsor shall prepare an outline of the course which shall be retained for a minimum of four years following the presentation; (iii) the sponsor shall list the hour rating of the course in the course outline. One hour of CPE shall be credited for each 50 minute period of instruction; (iv) the sponsor shall record and keep an accurate record of course attendance including the date, place, and the name of the licensed funeral service directors attending the course; and (v) the sponsor shall issue a certificate of completion listing the time, date, place, name of licensee, number of hours of CPE completed and the course title. (c) Formal correspondence or other individual study programs which require registration shall provide evidence of satisfactory completion including test results and meet all other requirements as specified in this section will qualify. (d) Each semester hour of college credit shall equal 15 hours of CPE. A quarter hour shall equal ten hours of CPE. (4) Upon written request from the licensee, the Board may waive the requirement for CPE as provided in Section R156-1-308d. (5) The licensee is responsible to insure that the program will qualify for CPE. Each licensee shall keep an accurate record of CPE on forms supplied by the Division. The records shall be maintained for a minimum of four years. (6) The Division in collaboration with the Board shall perform random audits to determine if the licensee is in compliance with the CPE requirements. If audited, or upon request by the Division, the licensee is responsible to submit documentation of compliance with CPE requirements. R156-9-401. Facility/Staff Requirements. (1) The funeral service establishment is responsible for the maintenance and safe operation of equipment used in funeral services and to insure that the facility is in compliance with the local or state health, fire and life safety codes. All mortuaries shall be kept and maintained in a clean and sanitary condition and all embalming tables, sinks, receptacles, instruments and other appliances used in embalming and cremation of dead human bodies shall be thoroughly cleansed and disinfected. (2) The funeral service director is responsible to comply with the standards established by the Occupational Safety and Health Administration for the Federal Government and for the State of Utah. (3) A funeral establishment or a number of funeral establishments under one management shall contain: (a) a preparation room equipped with tile, cement, or composition floor, necessary drainage and ventilation. Every preparation room shall be provided with proper and convenient receptacles for refuse, bandages, cotton and other waste materials and supplies. All refuse, bandages, cotton, and other waste materials shall be destroyed in a sanitary manner, in accordance with health regulations. (b) necessary instruments, supplies and proper protective clothing for the

3

preparation and embalming of dead human bodies for burial, transportation, or other disposition. (4) The care and preparation of the body for burial or other disposition of all human dead bodies shall be strictly private. No one shall be allowed in the embalming room while a dead body is being embalmed, except the licensed embalmer, intern, staff, public officials in the discharge of their duties and upon request, members of the immediate family of the deceased. R156-9-402. Duties and Responsibilities of a Funeral Service Director in Supervision of Funeral Service Interns, Preneed Funeral Arrangement Sales Agents and Unlicensed Staff. The duties and responsibilities of a supervising funeral service director include: (1) being professionally responsible for the acts and practices of the supervisee; (2) being engaged in a relationship with the supervisee in which the supervisor is independent from control by the supervisee and in which the ability of the supervisor to supervise and direct the practice of the supervisee is not compromised; (3) being available for advice, consultation, and direction consistent with the standards and ethics of the profession and the requirements suggested by the total circumstances including the supervisee's level of training; (4) monitoring the performance of the supervisee for compliance with laws, standards, and ethics applicable to the funeral service profession, including the Utah Vital Statistics Rules of the Utah Department of Health; (5) submitting appropriate documentation to the Division with respect to all work completed by the funeral service intern evidencing the performance of the supervisee during the period of supervised training, including the supervisor's evaluation of the supervisee's competence in the practice of the funeral service profession. This report shall be submitted to the Division within 30 days after the supervisor-supervisee relationship is terminated or within 30 days after the supervisee has completed 2000 hours of supervised experience in a period exceeding one year, performed 50 embalmings, and has satisfactorily completed all the duties and functions of an intern throughout the entire internship period; (6) supervising not more than one funeral service intern at any given time unless approved by the Board and Division; (7) being physically present and directly supervising, or ensuring that another funeral director directly supervises all duties and functions completed by a funeral service intern throughout the entire internship period; (8) being responsible for and signing all preneed and at need funeral contracts sold by persons under supervision; (9) assuring each supervisee is appropriately licensed as a funeral service intern or preneed funeral arrangement sales agent prior to beginning the supervision; (10) notifying the Division of beginning or ending of association or employment of a preneed sales agent with the funeral service establishment within ten days. Notification shall be made on forms provided by the Division; and (11) assuring that the supervision requirements are met as required in Section 58-9-307. R156-9-403. Death Registration - Removal of Body - Transportation and Preservation of Dead Human Bodies. (1) A funeral service director licensed in another state may enter the state of Utah for the purpose of transporting a dead human body to another state without being in violation of Title 58, Chapter 9. However, the person shall comply with the Utah Vital Statistics Rules of the Utah Department of Health and any other statute or rule regulated by the Utah Department of Health. (2) All licensed funeral service directors, who release a dead human body to such persons, are responsible to insure that the out of state persons and their staff comply with the Utah Vital Statistics Rules of the Utah Department of Health.

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R156-9-502. Unprofessional Conduct. "Unprofessional conduct" as defined in Title 58, Chapters 1 and 9, is further defined in accordance with Subsection 58-1-203(1)(e) to include: (1) violating the ethical standards of the profession; (2) failing to comply with laws and rules established by any local, state, federal or other authority regarding funeral services, preneed contracts, health, safety, sanitation, regarding funeral establishments or transportation or handling of dead human bodies, or disclosure requirements to purchasers or prospective purchasers of funeral services or preneed contract; (3) failing to comply with any provision of the Title 58, Chapter 9, Funeral Service Licensing Act or this Funeral Service Licensing Act Rule; (4) failing to comply with the disclosure requirements of the Federal Trade Commission; (5) failing to accurately report and record information required by law to be reported on a death certificate;. (6) solicitation or the direct or indirect offer to pay a commission for the procurement of dead human bodies; (7) failing to comply with the Utah Vital Statistics Rules as promulgated by the Utah Department of Health; (8) selling preneed funeral arrangements by a preneed funeral arrangement sales agent when the sales agent is not associated with or employed by a funeral service establishment; (9) selling a preneed funeral arrangement when the preneed funeral arrangement sales agent has not obtained approval to do so from the funeral service establishment and the contract is not approved by the supervising funeral director; (10) selling an insurance policy to fund a preneed funeral arrangement contract naming a funeral service establishment as beneficiary, prior to executing the underlying preneed funeral arrangement contract; (11) selling a preneed funeral arrangement without executing an approved preneed funeral arrangement contract within ten working days following the sale; (12) failing to notify the Division of the beginning or ending of association or employment of a preneed funeral arrangement sales agent; (13) exercising undue influence over a consumer thereby requiring or causing the consumer to purchase goods or services beyond those the consumer desires or needs; (14) collecting or receiving money from the sale of an insurance policy funding a preneed funeral arrangement contract unless the person is collecting or receiving the money as a licensed insurance agent or broker; (15) violating Title 31A, Chapter 23a, containing the fiduciary duties of a trustee with respect to money collected or received as a licensed insurance agent or broker; (16) receiving a death benefit payment of life insurance proceeds beyond the funeral service establishment's insurable interest in the recipient of goods and services specified in a preneed contract, unless the excess is promptly returned to the insurance company or paid to those entitled to the funds; (17) converting a preneed funeral arrangement funded by money placed in trust to insurance except as provided by this rule; (18) failing to provide guaranteed goods and services at time of need in accordance with the terms of a preneed funeral arrangement contract; (19) retaining life insurance proceeds of a policy purchased to fund funeral arrangements but not accompanied by a preneed funeral arrangement contract, unless the licensee provides an equivalent value of funeral goods and services; (20) failing to report known violations of governing law or rules to the Division and to appropriate law enforcement or other appropriate agencies; and

5

(21) failing to handle, remit or deposit funds received in payment for a preneed funeral arrangement contract by placing the funds in trust or remitting the funds to an insurance carrier as is required by the contract terms and conditions and by all laws and rules regulating the sale of preneed funeral arrangements and insurance and annuity policies. R156-9-604. Affiliation of Licensed Sales Agent with Licensed Funeral Service Establishment. (1) When a licensed sales agent enters association with a licensed funeral service establishment and such association is not currently registered with the Division under the provisions of Subsection 58-9-302(3)(d), or this subsection, the licensed funeral service establishment shall file a notice of association with the Division on forms provided by the Division within ten days after commencement of association. (2) The licensed funeral service establishment shall provide the licensed sales agent with a copy of the notice filed with the Division. (3) If a notice of association is not filed by the licensed funeral service establishment within ten days after association, the sales agent may not represent the licensed funeral service establishment with respect to any preneed funeral arrangement until such notice is filed. R156-9-605. Licensure of Persons Selling Preneed Funeral Arrangements to be Funded by Proceeds from Insurance or Annuity Policy. (1) Any person who sells or represents that they will or intend to sell specific funeral goods or services, represents that goods or services will be provided by a specific funeral establishment, represents that specified amount of money will purchase defined funeral goods or services, or represents that payment for those goods or services to be provided at some future date shall be accomplished through the purchase of a life insurance policy or annuity policy, is engaged in the sale of a preneed funeral arrangement and is required to be licensed as a funeral service establishment or sales agent. (2) Any person who sells or represents that they will or intend to sell an insurance or annuity policy which will provide a certain benefit at time of death, represents that such benefit will be available to pay for funeral arrangements and no reference is made to specific funeral goods or services, to the cost of specific funeral goods or services, or to the services of a specific funeral service establishment, is not engaged in the sale of a preneed funeral arrangement and is not required to be licensed as a funeral service establishment or preneed sales agent. (3) Nothing in this section shall be interpreted to affect or modify any requirement under state law regarding licensure of persons engaged in the sale of insurance or annuity policies. R156-9-606. Preneed Funeral Arrangement Contracts Funded by Insurance or Annuity Policy. (1) The beneficiary designation on any insurance or annuity policy sold to fund a preneed funeral arrangement contract shall be a contingent designation using such wording as "as their interests may appear under a funeral arrangement contract" with information identifying the funeral arrangement contract, or other substantially equivalent beneficiary designation language. (2) Monies received by a licensee in payment for an insurance or annuity policy sold to fund a preneed funeral arrangement contract shall be handled in accordance with the contractual terms and conditions of the policy and the insurance laws applicable to the policy. R156-9-607. Contract Forms - Division Model. (1) To assist applicants for a funeral service establishment license, the Division shall publish a model guaranteed preneed funeral arrangement contract form which meets the requirements of Section 58-9-701.

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(2) In accordance with the provisions of Subsection 58-9-302(3)(e), a funeral service establishment must submit to the Division a copy of the preneed contract form it intends to market for initial licensure and then ensure that if any amendments are made to the preneed section in the future, the amendments shall meet the requirements set forth in Section 58-9-701 before the contract form may be used in marketing the licensee's preneed funeral arrangement plan under that contract form. (3) In accordance with the provisions of Subsection 58-9-701(2)(a), easy-to-read type size is hereby defined to be of a type size large enough to accommodate no more than six lines per vertical inch and no more than 15 characters per horizontal inch. (4) After April 30, 2007, a new preneed contract form is not required to contain a clause indicating that the Division has approved the contract. Preneed contract forms approved prior to April 30, 2007 shall continue to contain a clause indicating approval by the Division. R156-9-608. Contract Notice Regarding Medicaid. The following notice shall appear in all preneed contracts: "Notice: Under Federal regulations, a Medicaid recipient whose preneed contract is revoked, canceled, or mutually rescinded may become ineligible for Medicaid benefits. Before permitting or causing your preneed agreement to be revoked, canceled or rescinded, you should seek the advice of an attorney or a Medicaid representative." R156-9-609. Retention of Completed or Terminated Contracts. Contracts shall be maintained for a period of five years after the contracts have been serviced and obligations of the funeral service establishment have been completed, or after the contracts have been otherwise terminated. The contracts shall be filed and maintained with a copy of the death certification or burial transit permit with respect to those contracts for which services have been provided, and with sufficient documentation to clearly identify the basis for termination of otherwise terminated. R156-9-610. Cash Advance Item Prohibited Unless a Guaranteed Product. A cash advance item as defined in 16 CFR Part 453, Funeral Industry Practices Trade Regulation Rule, of the Federal Trade Commission is prohibited in a preneed funeral arrangement contract unless the item is a guaranteed product permitting the contract to meet the requirements of Subsection 58-9-701(2)(d). R156-9-611. Use of Funds in Trust Account to Purchase Insurance or Annuity Policy. A funeral service establishment may convert a contract funded by monies held in trust with a contract funded by the proceeds from an insurance or annuity policy provided: (1) the buyer consents in writing to the conversion after full disclosure of the consequences of the transaction in writing by the funeral service establishment; (2) the buyer's consent is given without coercion, threat, concealment of material fact, undue influence, or other prejudicial influence inconsistent with the buyer's best interest; (3) the funeral service establishment uses all monies held in the individual trust account, including interest, as premium for the purchase of the life insurance or annuity policy, unless otherwise directed in writing by the buyer; (4) the new preneed funeral arrangement contract must be in writing and must provide for goods and services which at least equal to those required of the funeral service establishment under the original contract, and (5) the new contract meets all requirements of Title 58, Chapter 9, and this rule.

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R156-9-612. Conversion of Trust Accounts Under Prior Law Prohibited. Conversion of funds held in trust which was established under any prior law regulating preneed funeral arrangements, may not be converted to a trust under the provisions of current statute and rules, but shall continue to be held in trust under the terms and conditions of the predecessor law. However, the funeral service establishment is required to file reports with the Division as required under this rule. R156-9-613. Prohibition Against Provider Accepting Payment in a Form Other Than Cash, Cash Equivalents, or Negotiable Instruments. A funeral service establishment may accept in payment for a preneed funeral arrangement contract only cash, cash equivalents, or negotiable instruments which are readily convertible to cash. R156-9-614. Funeral Service Establishment Expenditure of Earnings from Trust Account. (1) In accordance with Subsection 58-9-704(1), earnings of a preneed funeral arrangement trust account shall be available to the funeral service establishment for expenditure toward reasonable trustee expenses of administering a trust account, not to exceed the lesser of the earnings remaining in the trust account or 1% of the entire trust account, plus any amounts necessary to pay taxes incurred on the entire trust account's earnings. (2) In accordance with Subsection 58-9-704(2), earnings of an individual account within the trust shall be available to the funeral service establishment for expenditure toward other authorized reasonable funeral service establishment expenses incurred against the individual account, not to exceed earnings totaling 30% of the sales amount of the respective preneed funeral arrangement contract. (3) Remaining earnings of individual accounts within the trust shall, except as provided in Subsection 58-9-704(3), remain in each individual account within the trust to pay by account, the costs of providing the goods and services required under respective preneed funeral arrangement contracts. R156-9-615. Maximum Life Insurance Proceeds Payable to Funeral Service Establishment. (1) Preneed life insurance proceeds payable to a funeral service provider shall not exceed the funeral service establishment's insurable interest in the recipient of goods and services which, by definition, shall not exceed the funeral service establishment's current retail price for the goods and services provided, as determined by the funeral service establishment's price list in effect at the recipient of goods and service's death. (2) Excess preneed life insurance proceeds not paid to the funeral service establishment shall be returned to the owner of the life insurance policy or his heirs and beneficiaries unless otherwise designated by the owner or his heirs and beneficiaries. R156-9-616. Reporting Requirements. (1) In accordance with Sections 58-9-504 and 58-9-706, each funeral service establishment shall maintain an annual report at the establishment which shall be subject to Division audit at anytime. The annual report shall be maintained in a format set forth by the Division and shall include: (a) a statement of compliance certifying: (i) that all payments received from the sale of contracts have been: (A) placed in the funeral service establishment's trust account in accordance with Section 58-9-702 and administered in accordance with Sections 58-9-703 through 58-9-705 and this rule; or (B) submitted to the insurance company whose insurance or annuity policy funds the contract;

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(ii) that complete and accurate information concerning the preneed funeral arrangements by the funeral service establishment or the funeral service establishment's sales agent was furnished or made available to the independent certified public accountant who prepared the report of agreed upon procedures; and (iii) that the annual report is complete and accurate; (b) at least one of the following reports which reconciles balances in all trust accounts and insurance policies to those in the annual report: (i) a report from a bank trust department; (ii) a report from a licensed insurance company; or (iii) an accounting report on forms available from the Division, completed by an independent certified public accountant (CPA) licensed pursuant to Title 58, Chapter 26a, which report indicates the procedures used and agreed upon by the CPA and the funeral service establishment. (c) an exhibit listing preneed contracts sold prior to April 29, 1991, funded by money, 75% of which is required to be maintained in the name of the contract buyer in the funeral service establishment's trust account as provided in Section 58-9-703, which shall include at a minimum: the contract number, date, amount, the recipient of goods and services and buyer if different, and balance due; the individual trust account number and amount trusted; and the trust earnings, earnings used, and trust balance; (d) an exhibit listing preneed contracts sold after April 28, 1991, funded by money, 100% of which is required to be maintained in the name of the contract buyer in the funeral service establishment's trust account as provided in Section 58-9-703, which shall include at a minimum the information required under subsection (c); (e) an exhibit listing preneed contracts funded by money placed in trust which were serviced, revoked, rescinded, or amended since the last reporting period, which shall include at a minimum: the contract number, date, amount, the recipient of goods and services and buyer if different; the individual trust account number and trust balance at the recipient of goods and service's death; the date the contract was closed; and an explanation regarding any preneed contract closed but not serviced; (f) an exhibit listing preneed contracts sold after April 28, 1991, funded in whole or in part by insurance, which shall include at a minimum: the contract number, date, amount, recipient of goods and services and buyer if different; the insurance company; the policy number, policy holder, and face amount; and (g) an exhibit listing preneed contracts funded by insurance which were serviced, revoked, rescinded, or otherwise amended since the last reporting period, which shall include at a minimum: the contract number, date, amount, the recipient of goods and services, and buyer if different; the insurance company; the policy number and policy holder; the policy proceeds; the date the contract was closed; and an explanation regarding any preneed contract closed but not serviced. R156-9-617. Maximum Revocation Fee. (1) If a buyer revokes or defaults under a guaranteed preneed funeral arrangement contract, the funeral service establishment may retain a revocation fee from the trust corpus, not to exceed 25% of the amount received from the sale of the contract and trust earnings thereupon, provided the revocation fee is clearly identified in the contract. R156-9-618. Goods and Services Not Provided - Refund. If goods or services selected in the preneed contract are not provided at the time of need, the amount paid for those goods and services and any unexpended earnings thereupon will be distributed to the preneed contract buyer or the buyer's representative or in their absence, the buyer's heirs and beneficiaries. KEY: funeral industries, licensing, funeral directors, preneed funeral arrangements Date of Enactment or Last Substantive Amendment: November 29, 2010 Notice of Continuation: October 31, 2006 Authorizing, and Implemented or Interpreted Law: 58-1-106(1)(a); 58-1-202(1)(a); 58-9-504

9

FUNERAL SERVICE LICENSING ACT RULE

R156-9 Utah Administrative Code Issued November 29, 2010

State of Utah

Administrative Rule Analysis

NOTICE OF PROPOSED RULE * The agency identified below in box 1 provides notice of proposed rule change pursuant to Utah Code Section 63G-3-301. * Please address questions regarding information on this notice to the agency. * The full text of all rule filings is published in the Utah State Bulletin unless excluded because of space constraints. * The full text of all rule filings may also be inspected at the Division of Administrative Rules.

DAR file no: Date filed:

State Admin Rule Filing Id: Time filed:

Agency No. Rule No. Section No.

Utah Admin. Code Ref (R no.): R 156 - 1 -

Changed to Admin. Code Ref. (R no.): R - -

1.

Agency: Commerce/Division of Occupational and Professional Licensing

Room no.:

Building: Heber M. Wells Building

Street address 1: 160 East 300 South

Street address 2:

City, state, zip: Salt Lake City UT 84111-2316

Mailing address 1: PO Box 146741

Mailing address 2:

City, state, zip: Salt Lake City UT 84114-6741

Contact person(s):

Name: Phone: Fax: E-mail:

W. Ray Walker 801-530-6256 801-530-6511 raywalker@utah.gov

(Interested persons may inspect this filing at the above address or at the Division of Administrative Rules during business hours)

2. Title of rule or section (catchline):

General Rule of the Division of Occupational and Professional Licensing

3. Type of notice:

New ___; Amendment XX; Repeal ___; Repeal and Reenact ___

4. Purpose of the rule or reason for the change:

This rule change implements changes made by the 2011 Legislature. Specifically it addresses H.B. 238, H.B. 243, and S.B. 129. A companion rule filing affecting R156-46b revises the designation of adjudicative proceedings moving some from formal to informal proceedings. This filing designates the presiding officers for these proceedings. This filing removes some reinstatement requirement language which has proven difficult or unworkable to administer. Finally, this filing also makes technical, cleanup, and minor clarification changes.

5. This change is a response to comments from the Administrative Rules Review Committee.

No XX; Yes ___

6. Summary of the rule or change:

Subsection R1561-102(13) and Subsection R156-1-109(1): Modifies the designation of the alternate presiding officer for citation hearings and for issuing investigative subpoenas, to be consistent with and provide future flexibility in the Divisions “Revised Consolidation of Delegation of Authority Letters document. Subsection R156-1-106(1): Modifies this section to clarify that licensee lists provided as permitted by statute or rule may include a licensee’s e-mail address. Subsection R156-1-109(3) & (4): Designates the presiding officers for certain adjudicative proceedings that are being reclassified as informal proceedings in a separate companion rule filing. The purpose of these changes is to achieve greater efficiency. This filing also makes technical numbering changes to these subsections. Subsection R156-1-305(2): Adds physical therapists and landscape architects to the list of license classifications allowed to place their license on inactive status. Section R156-1-308a: Removes and revises certain renewal dates to: (a) implement the repeal of the Alternative Dispute Resolution Providers Certification Act by H.B. 243; (b) address the renewal dates to implement the creation of a new Radiologist Assistant license classification and the revision of the classification of Radiology Technologist to Radiologic Technologist, as revised under H.B. 238; (c) address the renewal dates to implement the creation of Type I and Type II Physician Foreign Teaching licenses as created by S.B. 129; and (e) to address the revision of the Vocational Rehabilitation Counselor renewal dates from an annual March 31 renewal date to an every two years odd-year renewal date cycle as revised by H.B. 243. Section R156-1-308c: Clarifies the duty of a licensee to maintain a current mailing address with the Division, and provides that notice to such address constitutes legal notice to a licensee. This was codified into statute by H.B. 243. Subsection R156-1-308g(3) & (4): Removes a reinstatement requirement that requires applicants who apply more than two years after the license expiration of their license, who have continued working in their occupation or profession on an expired license, a backward looking renewal fee requirement that is determined by multiplying the current renewal fee times the number of missed renewal periods the applicant worked before applying to reinstate their expired license. This requirement has proven difficult or unworkable to administer and has been administered inconsistently by Division staff. Further it is deemed unnecessary now that we just acquired fine and citation authority across the board for all occupations and professions for unlicensed practice. This filing also removes redundant or unnecessary reinstatement language. Section R156-1-502: Establishes a fine schedule to implement the fine authority granted under H.B. 243. Finally, this filing renumbers and makes technical and clarifying changes throughout the filing.

7. Aggregate anticipated cost or savings to:

A) State budget:

Affected: No ___; Yes XX

The Division will incur reprinting costs of approximately $100. The fiscal impact of the repeal of the Alternative Dispute Resolution Providers Certification Act and the creation of a new Radiology Assistant and Type I and II Foreign Trained Physician-Educator license classifications were quantified in the fiscal notes for H.B. 243 and 238, and S.B. 129, respectively. This rule filing merely conforms our list of renewal dates to address the referenced legislation. Revenue to the General Fund will be generated from the new fine and citation authority granted by S.B. 243. However, the amount cannot be quantified. Revenue to the Commerce Service Fund will potentially be lost by not charging the backward looking reinstatement fee described above. However few if any Bureau Managers were imposing the fee such that it is not anticipated there will be any net lost revenue of significance

B) Local government:

Affected: No XX; Yes ___

(The proposed amendments only apply to licensed occupations and professions and applicants for licensure in those occupations and professions. As a result, the proposed amendments do not apply to local governments.

C) Small businesses ("small business" means a business employing fewer than 50 persons):

Affected: No ___; Yes XX

Alternative Dispute Resolution Providers: The number of small Alternative Dispute Resolution small businesses is unknown. Deregulation of the Alternative Dispute Resolution Providers profession will eliminate the mandatory costs associated with an individual qualifying for and maintaining a license. The costs to qualify for a license were between $900 and $1,200 for the 40-hour education requirement, an unidentified amount for the 32-hour experience requirement, and $85 for the initial license application fee. The cost to maintain a license is a $63 renewal fee. There are currently 49 licensees. This profession renewed on September 30th of even years. Due to the repeal of the licensing requirement, the $3,087 collected in renewal fees a little over six months ago will be refunded, as will the $170 of initial licensing fees for the two new license applicants during 2010. It should be noted however that individuals will likely continue to complete this education and experience, although no longer required, in order to be trained and employable or competitive in the profession. Physical Therapists: Physical Therapists pay a renewal fee of $47. If they place their license on inactive status they will pay an inactive license fee of $50 on the same two-year cycle. The reason for putting a license on inactive status when a licensee is not using the license currently but may use it in the future is to make the continuing education requirement inapplicable. Physical Therapists are required to obtain 40 hours of continuing education each two-year renewal cycle at an approximate cost of $1,200. Licensees are required to complete the current renewal year continuing education when they reinstate their license. Radiology Assistants: Radiology Assistants will be impacted by the new Radiology Assistant licensing requirement required under H.B. 238. Radiology Assistants must all first meet the requirements for and become licensed as a Radiologic Technologist. This is an approved two-year Associate’s degree in radiologic technology. Upon completion of the degree applicants for licensure must take the examination and be certified as a Radiologic Technologist by the American Registry of Radiologic Technologist (ARRT). The initial examination and certification cost is $200. Thereafter, certificate holders must pay an annual certification fee of $20. Radiology Assistants must then complete any Bachelors of Science degree and take and an examination from and be certified by the ARRT as a Radiology Assistant. The initial examination and registration fee is $200. Thereafter certified Radiology Assistants must pay an annual certification fee of $20. Radiology Assistants are not required to maintain their former Radiologic Technologist certification. As an alternative to the ARRT Radiology Assistant certification, applicants may be certified by the Certification Board for Radiology Practitioner Assistants(CBRPA). The initial examination fee is $150 with a $100 annual certification fee thereafter. The cost of the education programs described above for Radiology Assistants varies from between approximately $13,750 and $24,750. Modification of Reinstatement Fees: Reinstatement applicants who have been working on an expired license will potentially experience a savings in application filing fees by not charging the backward looking reinstatement fee described in the Summary of Filing above. However few if any Bureau Managers have been imposing this fee, such that it is not anticipated there will be any net savings to applicants.

D) Persons other than small businesses, businesses, or local government entities ("person" means any individual, partnership, corporation, association, governmental entity, or public or private organization of any character other than an agency):

Affected: No ___; Yes XX

It is not anticipated that Alternative Dispute Resolution Provider education and certification programs will lose revenue in the amount of the potential cost savings described above, because individuals will likely attend their programs despite deregulation, in order to be trained and employable or competitive in the profession.

8. Compliance costs for affected persons:

Alternative Dispute Resolution Providers: Deregulation of the Alternative Dispute Resolution Providers profession will eliminate the mandatory costs associated with an individual qualifying for and maintaining a license. The costs to qualify for a license were between $900 and $1,200 for the 40-hour education requirement, an unidentified amount for the 32-hour experience requirement, and $85 for the initial license application fee. The cost to maintain a license is a $63 renewal fee. There are currently 49 licensees. This profession renewed on September 30th of even years. Due to the repeal of the licensing requirement, the $3,087 collected in renewal fees a little over six months ago will be refunded, as will the $170 of initial licensing fees for the two new license applicants during 2010. It should be noted however that individuals will likely continue to complete this education and experience, although no longer required, in order to be trained and employable or competitive in the profession. Physical Therapists: Physical Therapists pay a renewal fee of $47. If they place their license on inactive status they will pay an inactive license fee of $50 on the same two-year cycle. The reason for putting a license on inactive status when a licensee is not using the license currently but may use it in the future is to make the continuing education requirement inapplicable. Physical Therapists are required to obtain 40 hours of continuing education each two-year renewal cycle at an approximate cost of $1,200. Licensees are required to complete the current renewal year continuing education when they reinstate their license. Radiology Assistants: Radiology Assistants will be impacted by the new Radiology Assistant licensing requirement required under H.B. 238. Radiology Assistants must all first meet the requirements for and become licensed as a Radiologic Technologist. This is an approved two-year Associate’s degree in radiologic technology. Upon completion of the degree applicants for licensure must take the examination and be certified as a Radiologic Technologist by the American Registry of Radiologic Technologist (ARRT). The initial examination and certification cost is $200. Thereafter, certificate holders must pay an annual certification fee of $20. Radiology Assistants must then complete any Bachelors of Science degree and take and an examination from and be certified by the ARRT as a Radiology Assistant. The initial examination and registration fee is $200. Thereafter certified Radiology Assistants must pay an annual certification fee of $20. Radiology Assistants are not required to maintain their former Radiologic Technologist certification. As an alternative to the ARRT Radiology Assistant certification, applicants may be certified by the Certification Board for Radiology Practitioner Assistants(CBRPA). The initial examination fee is $150 with a $100 annual certification fee thereafter. The cost of the education programs described above for Radiology Assistants varies from between approximately $13,750 and $24,750. Physician Educators: Persons who qualify for a Type I or Type II physician educator licenses will be required to pay an initial license application fee of $200 and a renewal fee every two years of $183. The costs to meet the requirements for a Type I or Type II physician educator license are varied and cannot be capably estimated. Modification of Reinstatement Fees: Reinstatement applicants who have been working on an expired license will potentially experience a savings in application filing fees by not charging the backward looking reinstatement fee described in the Summary of Filing above. However few if any Bureau Managers have been imposing this fee, such that it is not anticipated there will be any net savings to applicants. Fine and Citation Authority: The fine authority granted to the Division to enforce, across all of its regulated professions, unlicensed practice and hiring persons requiring a license who are not licensed, will cost those so engaged in unlawful practice and generate general fund revenue. The maximum fines are $1,000 for a first offense, $2,000 for a second offense, and up to $1,000 per day for ongoing offenses thereafter. The proposed rule establishes a fine schedule to make sure the Division is consistent in its enforcement. The fine schedule is set at $500 and $800, for a first offense of unlicensed practice and hiring someone who is required to be licensed who is unlicensed, respectively. A second offense is double this amount. A third offense is double the amount of the second offense per day of continued unlawful conduct. The Division cannot predict with any degree of certainty the number of citations that will be issued per month or year under this new authority.

9. A) Comments by the department head on the fiscal impact the rule may have on businesses:

This rule filing implements several statutory changes passed in the 2011 Legislative Session for which the fiscal impact had already been addressed. The proposed amendments and possible costs to licensees are addressed in the rule summary. No further fiscal impact to businesses is anticipated.

B) Name and title of department head commenting on the fiscal impacts:

Francine A. Giani, Executive Director

10. This rule change is authorized or mandated by state law, and implements or interprets the following state and

federal laws.

State code or constitution citations (required) (e.g., Section 63G-3-402; Subsection 63G-3-601(3); Article IV) :

Subsection 58-1-106(1)(a) Section 58-1-308

Subsection 58-1-501(4)

11. This rule adds, updates, or removes the following title of materials incorporated by references (a copy of materials incorporated by reference must be submitted to the Division of Administrative Rules; if none, leave blank):

First Incorporation Second Incorporation

Official Title of Materials

Incorporated (from title page)

Publisher

Date Issued

Issue, or version

ISBN Number (optional)

ISSN Number (optional)

Cost of Incorporated Reference

Action: Adds, updates, or removes

(If this rule incorporates more than two items by reference, please attach additional pages)

12. The public may submit written or oral comments to the agency identified in box 1. (The public may also request a hearing by submitting a written request to the agency. The agency is required to hold a hearing if it receives requests from ten interested persons or from an association having not fewer than ten members. Additionally, the request must be received by the agency not more than 15 days after the publication of this rule in the Utah State Bulletin. See Section 63G-3-302 and Rule R15-1 for more information.)

A) Comments will be accepted until 5:00 p.m. on (mm/dd/yyyy): 07/15/2011

B) A public hearing (optional) will be held:

On (mm/dd/yyyy): At (hh:mm AM/PM): At (place):

13. This rule change may become effective on (mm/dd/yyyy): 07/22/2011

NOTE: The date above is the date on which this rule MAY become effective. It is NOT the effective date. After the date designated in Box 12(A) above, the agency must submit a Notice of Effective Date to the Division of Administrative Rules to make this rule effective. Failure to submit a Notice of Effective Date will result in this rule lapsing and will require the agency to start the rulemaking process over.

14. Indexing information -- keywords (maximum of four, in lower case, except for acronyms (e.g., "GRAMA") or proper nouns (e.g., "Medicaid"); may not include the name of the agency:

diversion programs licensing

occupational licensing supervision

15. Attach an RTF document containing the text of this rule change

(filename): R156-1.pro

To the agency: Information requested on this form is required by Sections 63G-3-301, 302, 303, and 402. Incomplete forms will be returned to the agency for completion, possibly delaying publication in the Utah State Bulletin, and delaying the first possible effective date.

AGENCY AUTHORIZATION

Agency head or

designee, and title:

Mark B. Steinagel, Division Director Date (mm/dd/yyyy):

05/31/2011

eRules v. 2: ProposedRule.doc 09/03/2009 (http://www.rules.utah.gov/agencyresources/forms/ProposedRule.doc)

R156. Commerce, Occupational and Professional Licensing.

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

Professional Licensing.

R156-1-102. Definitions.

In addition to the definitions in Title 58, as used in Title 58

or this rule:

(1) "Active and in good standing" means a licensure status

which allows the licensee full privileges to engage in the practice

of the occupation or profession subject to the scope of the

licensee's license classification.

(2) "Aggravating circumstances" means any consideration or

factors that may justify an increase in the severity of an action to

be imposed upon an applicant or licensee. Aggravating circumstances

include:

(a) prior record of disciplinary action, unlawful conduct, or

unprofessional conduct;

(b) dishonest or selfish motive;

(c) pattern of misconduct;

(d) multiple offenses;

(e) obstruction of the disciplinary process by intentionally

failing to comply with rules or orders of the Division;

(f) submission of false evidence, false statements or other

deceptive practices during the disciplinary process including

creating, destroying or altering records after an investigation has

begun;

(g) refusal to acknowledge the wrongful nature of the

misconduct involved, either to the client or to the Division;

(h) vulnerability of the victim;

(i) lack of good faith to make restitution or to rectify the

consequences of the misconduct involved;

(j) illegal conduct, including the use of controlled

substances; and

(k) intimidation or threats of withholding clients' records or

other detrimental consequences if the client reports or testifies

regarding the unprofessional or unlawful conduct.

(3) "Cancel" or "cancellation" means nondisciplinary action by

the Division to rescind, repeal, annul, or void a license issued in

error. Such action includes rescinding a license issued to an

applicant whose payment of the required application fee is

dishonored when presented for payment, or who has been issued a

conditional license pending a criminal background check and the

check cannot be completed due to the applicant's failure to resolve

an outstanding warrant or to submit acceptable fingerprint cards.

(4) "Charges" means the acts or omissions alleged to

constitute either unprofessional or unlawful conduct or both by a

licensee, which serve as the basis to consider a licensee for

inclusion in the diversion program authorized in Section 58-1-404.

(5) "Denial of licensure" means action by the Division

refusing to issue a license to an applicant for initial licensure,

renewal of licensure, reinstatement of licensure or relicensure.

(6)(a) "Disciplinary action" means adverse licensure action by

the Division under the authority of Subsections 58-1-401(2)(a)

through (2)(b).

(b) "Disciplinary action", as used in Subsection 58-1-401(5),

shall not be construed to mean an adverse licensure action taken in

response to an application for licensure. Rather, as used in

Subsection 58-1-401(5), it shall be construed to mean an adverse

action initiated by the Division.

(7) "Diversion agreement" means a formal written agreement

between a licensee, the Division, and a diversion committee,

outlining the terms and conditions with which a licensee must comply

as a condition of entering in and remaining under the diversion

program authorized in Section 58-1-404.

(8) "Diversion committees" mean diversion advisory committees

authorized by Subsection 58-1-404(2)(a)(i) and created under

Subsection R156-1-404a.

(9) "Duplicate license" means a license reissued to replace a

license which has been lost, stolen, or mutilated.

(10) "Emergency review committees" mean emergency adjudicative

proceedings review committees created by the Division under the

authority of Subsection 58-1-108(2).

(11) "Expire" or "expiration" means the automatic termination

of a license which occurs:

(a) at the expiration date shown upon a license if the

licensee fails to renew the license before the expiration date; or

(b) prior to the expiration date shown on the license:

(i) upon the death of a licensee who is a natural person;

(ii) upon the dissolution of a licensee who is a partnership,

corporation, or other business entity; or

(iii) upon the issuance of a new license which supersedes an

old license, including a license which:

(A) replaces a temporary license;

(B) replaces a student or other interim license which is

limited to one or more renewals or other renewal limitation; or

(C) is issued to a licensee in an upgraded classification

permitting the licensee to engage in a broader scope of practice in

the licensed occupation or profession.

(12) "Inactive" or "inactivation" means action by the Division

to place a license on inactive status in accordance with Sections

58-1-305 and R156-1-305.

(13) "Investigative subpoena authority" means, except as

otherwise specified in writing by the director, the Division

regulatory and compliance officer, or if the Division regulatory and

compliance officer is unable to so serve for any reason, a

Department administrative law judge, or if both the Division

regulatory and compliance officer and a Department administrative

law judge are unable to so serve for any reason, an alternate

[bureau manager ]designated by the director in writing.

(14) "License" means a right or privilege to engage in the

practice of a regulated occupation or profession as a licensee.

(15) "Limit" or "limitation" means nondisciplinary action

placing either terms and conditions or restrictions or both upon a

license:

(a) issued to an applicant for initial licensure, renewal or

reinstatement of licensure, or relicensure; or

(b) issued to a licensee in place of the licensee's current

license or disciplinary status.

(16) "Mitigating circumstances" means any consideration or

factors that may justify a reduction in the severity of an action to

be imposed upon an applicant or licensee.

(a) Mitigating circumstances include:

(i) absence of prior record of disciplinary action, unlawful

conduct or unprofessional conduct;

(ii) personal, mental or emotional problems provided such

problems have not posed a risk to the health, safety or welfare of

the public or clients served such as drug or alcohol abuse while

engaged in work situations or similar situations where the licensee

or applicant should know that they should refrain from engaging in

activities that may pose such a risk;

(iii) timely and good faith effort to make restitution or

rectify the consequences of the misconduct involved;

(iv) full and free disclosure to the client or Division prior

to the discovery of any misconduct;

(v) inexperience in the practice of the occupation and

profession provided such inexperience is not the result of failure

to obtain appropriate education or consultation that the applicant

or licensee should have known they should obtain prior to beginning

work on a particular matter;

(vi) imposition of other penalties or sanctions if the other

penalties and sanctions have alleviated threats to the public

health, safety, and welfare; and

(viii) remorse.

(b) The following factors should not be considered as

mitigating circumstances:

(i) forced or compelled restitution;

(ii) withdrawal of complaint by client or other affected

persons;

(iii) resignation prior to disciplinary proceedings;

(iv) failure of injured client to complain; and

(v) complainant's recommendation as to sanction.

(17) "Nondisciplinary action" means adverse licensure action

by the Division under the authority of Subsections 58-1-401(1) or

58-1-401(2)(c) through (2)(d).

(18) "Peer committees" mean advisory peer committees to boards

created by the legislature in Title 58 or by the Division under the

authority of Subsection 58-1-203(1)(f).

(19) "Probation" means disciplinary action placing terms and

conditions upon a license;

(a) issued to an applicant for initial licensure, renewal or

reinstatement of licensure, or relicensure; or

(b) issued to a licensee in place of the licensee's current

license or disciplinary status.

(20) "Public reprimand" means disciplinary action to formally

reprove or censure a licensee for unprofessional or unlawful

conduct, with the documentation of the action being classified as a

public record.

(21) "Regulatory authority" as used in Subsection 58-1-

501(2)(d) means any governmental entity who licenses, certifies,

registers, or otherwise regulates persons subject to its

jurisdiction, or who grants the right to practice before or

otherwise do business with the governmental entity.

(22) "Reinstate" or "reinstatement" means to activate an

expired license or to restore a license which is restricted, as

defined in Subsection (26)(b), or is suspended, or placed on

probation, to a lesser restrictive license or an active in good

standing license.

(23) "Relicense" or "relicensure" means to license an

applicant who has previously been revoked or has previously

surrendered a license.

(24) "Remove or modify restrictions" means to remove or modify

restrictions, as defined in Subsection (25)(a), placed on a license

issued to an applicant for licensure.

(25) "Restrict" or "restriction" means disciplinary action

qualifying or limiting the scope of a license:

(a) issued to an applicant for initial licensure, renewal or

reinstatement of licensure, or relicensure in accordance with

Section 58-1-304; or

(b) issued to a licensee in place of the licensee's current

license or disciplinary status.

(26) "Revoke" or "revocation" means disciplinary action by the

Division extinguishing a license.

(27) "Suspend" or "suspension" means disciplinary action by

the Division removing the right to use a license for a period of

time or indefinitely as indicated in the disciplinary order, with

the possibility of subsequent reinstatement of the right to use the

license.

(28) "Surrender" means voluntary action by a licensee giving

back or returning to the Division in accordance with Section 58-1-

306, all rights and privileges associated with a license issued to

the licensee.

(29) "Temporary license" or "temporary licensure" means a

license issued by the Division on a temporary basis to an applicant

for initial licensure, renewal or reinstatement of licensure, or

relicensure in accordance with Section 58-1-303.

(30) "Unprofessional conduct" as defined in Title 58 is

further defined, in accordance with Subsection 58-1-203(1)(e), in

Section R156-1-502.

(31) "Warning or final disposition letters which do not

constitute disciplinary action" as used in Subsection 58-1-108(3)

mean letters which do not contain findings of fact or conclusions of

law and do not constitute a reprimand, but which may address any or

all of the following:

(a) Division concerns;

(b) allegations upon which those concerns are based;

(c) potential for administrative or judicial action; and

(d) disposition of Division concerns.

R156-1-106. Division - Duties, Functions, and Responsibilities.

(1) In accordance with Subsection 58-1-106(2), the following

responses to requests for lists of licensees may include multiple

licensees per request and may include home telephone numbers, [and

]home addresses, and e-mail addresses, subject to the restriction

that the addresses and telephone numbers shall only be used by a

requester for purposes for which the requester is properly

authorized and shall not be sold or otherwise redisclosed by the

requester:

(a) responses to requests from another governmental entity,

government-managed corporation, a political subdivision, the federal

government, another state, or a not-for-profit regulatory

association to which the Division is a member;

(b) responses to requests from an occupational or professional

association, private continuing education organizations, trade

union, university, or school, for purposes of education programs for

licensees;

(c) responses to a party to a prelitigation proceeding

convened by the Division under Title 78, Chapter 14;

(d) responses to universities, schools, or research facilities

for the purposes of research;

(e) responses to requests from licensed health care facilities

or third party credentialing services, for the purpose of verifying

licensure status for issuing credentialing or reimbursement

purposes; and

(f) responses to requests from a person preparing for,

participating in, or responding to:

(i) a national, state or local emergency;

(ii) a public health emergency as defined in Section 26-23b-

102; or

(iii) a declaration by the President of the United States or

other federal official requesting public health-related activities.

(2) In accordance with Subsection 58-1-106(3)(a) and (b), the

Division may deny a request for an address or telephone number of a

licensee to an individual who provides proper identification and the

reason for the request, in writing, to the Division, if the reason

for the request is deemed by the Division to constitute an

unwarranted invasion of privacy or a threat to the public health,

safety, and welfare.

(3) In accordance with Subsection 58-1-106(3)(c), proper

identification of an individual who requests the address or

telephone number of a licensee and the reason for the request, in

writing, shall consist of the individual's name, mailing address,

and daytime number, if available.

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 [bureau manager designated]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, the 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)(e), 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)(d), (h),(j), (m), (n), (p), and (t), and

R156-46b-202(2)(a), [and ](b) and (c)(ii), however resolved,

including memorandums 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 Subsections

R156-46b-201(1)(a) through (c), provided that any evidentiary

hearing requested shall be conducted by the appropriate board who

shall be designated as the presiding officer to act as the fact

finder at any evidentiary hearing and shall issue a recommended

order to the Division based upon the record developed at the hearing

determining all issues pending before the Division to the director

for a final order;

(ii) formal adjudicative proceedings described in Subsection

R156-46b-201(1)(f), for purposes of determining whether a request

for a board of appeal is properly filed as set forth in Subsections

R156-56-105(1) through (4); and

(iii) informal adjudicative proceedings described in

Subsections R156-46b-202(1)(a) through (c), (e), (g), (i), (k), [and

](o), (q)(ii) and (iii), (r)(ii) and (iii), (s)(ii) and (iii), and

R156-46b-202(2)(c)(iii).

(iv) 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) [Contested ]Citation Hearing Officer. The regulatory and

compliance officer or other [contested ]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)(l).

(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)(f) for convening

a board of appeal under Subsection 58-56-8(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 for adjudicative proceedings described in Subsection R156-

46b-202(1)(g) that exceed the authority of the program coordinator,

as delegated by the board, or are otherwise referred by the program

coordinator to the board for action.

(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 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 commission,

the commission is designated as the presiding officer:

(A) for formal adjudicative proceedings described in

Subsections R156-46b-201(1)(e) and R156-46b-201(2)(a) through (b),

however resolved, including stipulated settlements and hearings;

(B) informal adjudicative proceedings described in Subsections

R156-46b-202(1)(d), (m), (n), (p),(s)(i) and (t), and R156-46b-

202(2)(b) and (c), however resolved, including memorandums of

understanding and stipulated settlements;

(C) 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

(D) 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 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 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 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) If the director or his designee refuses to concur in an

adopted order of the commission or its designee, the director or his

designee shall return the order to the commission or its designee

with the reasons set forth in writing for the nonconcurrence

therein. 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, provided that

unless the director or his designee and the commission or its

designee agree to an extension, any final order must be issued

within 90 days of the date of the initial recommended order, or the

adjudicative proceeding shall be dismissed. 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 his 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 commission and concurred

in by the director may be appealed by filing a request for agency

review with the executive director or his 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 is designated as the presiding

officer for the concurrence role on disciplinary proceedings under

Subsections R156-46b-202(2)(c) as required by Subsection 58-55-

103(1)(b)(iv).

(c) Administrative Law Judge. Unless otherwise specified in

writing by the commission, the 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 commission, the responsible bureau manager is designated as the

presiding officer for conducting:

(i) formal adjudicative proceedings specified in Subsections

R156-46b-201(1)(a) through (c), provided that any evidentiary

hearing requested shall be conducted by the appropriate board or

commission who shall be designated as the presiding officer to act

as the fact finder at any evidentiary hearing and to adopt orders as

set forth in this rule; and

(ii) informal adjudicative proceedings specified in

Subsections R156-46b-202(1)(a) through (c), (e), (i),(o), (q)(i) and

(r)(i).

(iii) 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.

(e) 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 commission in formal evidentiary hearings

associated with adjudicative proceedings involving persons licensed

as or required to be licensed as plumbers.

(f) 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 commission in formal evidentiary hearings

associated with adjudicative proceedings involving persons licensed

as or required to be licensed as electricians.

(g) 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 commission in formal evidentiary

hearings associated with adjudicative proceedings involving persons

licensed as or required to be licensed as alarm companies or agents.

R156-1-305. Inactive Licensure.

(1) In accordance with Section 58-1-305, except as provided in

Subsection (2), a licensee may not apply for inactive licensure

status.

(2) The following licenses issued under Title 58 that are

active in good standing may be placed on inactive licensure status:

(a) advanced practice registered nurse;

(b) architect;

(c) audiologist;

(d) certified nurse midwife;

(e) certified public accountant emeritus;

(f) certified registered nurse anesthetist;

(g) certified court reporter;

(h) certified social worker;

(i) chiropractic physician;

(j) clinical social worker;

(k) contractor;

(l) deception detection examiner;

(m) deception detection intern;

(n) dental hygienist;

(o) dentist;

(p) direct-entry midwife;

(q) genetic counselor;

(r) health facility administrator;

(s) hearing instrument specialist;

(t) landscape architect;

([t]u) licensed substance abuse counselor;

([u]v) marriage and family therapist;

([v]w) naturopath/naturopathic physician;

([w]x) optometrist;

([x]y) osteopathic physician and surgeon;

([y]z) pharmacist;

([z]aa) pharmacy technician;

(bb) physical therapist;

([aa]cc) physician assistant;

([bb]dd) physician and surgeon;

([cc]ee) podiatric physician;

([dd]ff) private probation provider;

([ee]gg) professional counselor;

([ff]hh) professional engineer;

([gg]ii) professional land surveyor

([hh]jj) professional structural engineer;

([ii]kk) psychologist;

([jj]ll) radiology practical technician;

([kk]mm) radiolog[y]ic technologist;

([ll]nn) security personnel;

([mm]oo) speech-language pathologist; and

([nn]pp) veterinarian.

(3) Applicants for inactive licensure shall apply to the

Division in writing upon forms available from the Division. Each

completed application shall contain documentation of requirements

for inactive licensure, shall be verified by the applicant, and

shall be accompanied by the appropriate fee.

(4) If all requirements are met for inactive licensure, the

Division shall place the license on inactive status.

(5) A license may remain on inactive status indefinitely

except as otherwise provided in Title 58 or rules which implement

Title 58.

(6) An inactive license may be activated by requesting

activation in writing upon forms available from the Division.

Unless otherwise provided in Title 58 or rules which implement Title

58, each reactivation application shall contain documentation that

the applicant meets current renewal requirements, shall be verified

by the applicant, and shall be accompanied by the appropriate fee.

(7) An inactive licensee whose license is activated during the

last four months of a renewal cycle shall, upon payment of the

appropriate fees, be licensed for a full renewal cycle plus the

period of time remaining until the impending renewal date, rather

than being required to immediately renew their activated license.

(8) A Controlled Substance license may be placed on inactive

status if attached to a primary license listed in Subsection R156-1-

305(2) and the primary license is placed on inactive status.

R156-1-308a. Renewal Dates.

(1) The following standard two-year renewal cycle renewal

dates are established by license classification in accordance with

the Subsection 58-1-308(1):

TABLE

RENEWAL DATES

(1) Acupuncturist May 31 even years

(2) Advanced Practice Registered Nurse January 31 even years[

(3) Alternate Dispute Resolution Provdr September 30 even years]

([4]3) Architect May 31 even years

([5]4) Athlete Agent September 30 even years

([6]5) Athletic Trainer May 31 odd years

([7]6) Audiologist May 31 odd years

([8]7) Barber September 30 odd years

([9]8) Barber School September 30 odd years

([10]9) Building Inspector November 30 odd years

([11]10) Burglar Alarm Security November 30 even

years

([12]11) C.P.A. Firm September 30 even years

([13]12) Certified Court Reporter May 31 even years

([14]13) Certified Dietitian September 30 even years

([15]14) Certified Medical Language Interpreter March 31 odd years

([16]15) Certified Nurse Midwife January 31 even years

([17]16) Certified Public Accountant September 30 even years

([18]17) Certified Registered

Nurse Anesthetist January 31 even years

([19]18) Certified Social Worker September 30 even years

([20]19) Chiropractic Physician May 31 even years

([21]20) Clinical Social Worker September 30 even years

([22]21) Construction Trades Instructor November 30 odd years

([23]22) Contractor November 30 odd years

([24]23) Controlled Substance License Attached to primary

license renewal

([25]24) Controlled Substance

Precursor May 31 odd years

([26]25) Controlled Substance Handler May 31 odd years

([27]26) Cosmetologist/Barber September 30 odd years

([28]27) Cosmetology/Barber School September 30 odd years

([29]28) Deception Detection November 30 even years

([30]29) Dental Hygienist May 31 even years

([31]30) Dentist May 31 even years

([32]31) Direct-entry Midwife Sept 30 odd years

([33]32) Electrician

Apprentice, Journeyman, Master,

Residential Journeyman,

Residential Master November 30 even years

([34]33) Electrologist September 30 odd years

([35]34) Electrology School September 30 odd years

([36]35) Elevator Mechanic November 30 even years

([37]36) Environmental Health Scientist May 31 odd years

([38]37) Esthetician September 30 odd years

([39]38) Esthetics School September 30 odd years

([40]39) Factory Built Housing Dealer September 30 even years

([41]40) Funeral Service Director May 31 even years

([42]41) Funeral Service May 31 even years

Establishment

([43]42) Genetic Counselor September 30 even years

([44]43) Health Facility May 31 odd years

Administrator

([45]44) Hearing Instrument September 30 even years

Specialist

([46]45) Internet Facilitator September 30 odd years

([47]46) Landscape Architect May 31 even years

([48]47) Licensed Practical Nurse January 31 even years

([49]48) Licensed Substance Abuse May 31 odd years

Counselor

([50]49) Marriage and Family September 30 even years

Therapist

([51]50) Massage Apprentice, May 31 odd years

Therapist

([52]51) Master Esthetician September 30 odd years

([53]52) Medication Aide Certified March 31 odd years

([54]53) Nail Technologist September 30 odd years

([55]54) Nail Technology School September 30 odd years

([56]55) Naturopath/Naturopathic May 31 even years

Physician

([57]56) Occupational Therapist May 31 odd years

([58]57) Occupational Therapy May 31 odd years

Assistant

([59]58) Optometrist September 30 even years

([60]59) Osteopathic Physician and May 31 even years

Surgeon,

Online Prescriber

([61]60) Outfitter/Hunting Guide May 31 even years

([62]61) Pharmacy Class A-B-C-D-E, September 30 odd years

Online Contract Pharmacy

([63]62) Pharmacist September 30 odd years

([64]63) Pharmacy Technician September 30 odd years

([65]64) Physical Therapist May 31 odd years

([66]65) Physical Therapist Assistant May 31 odd years

([67]66) Physician Assistant May 31 even years

([68]67) Physician and Surgeon, January 31 even

years

Online Prescriber

([69]68) Plumber

Apprentice, Journeyman,

Master, Residential Master,

Residential Journeyman November 30 even years

([70]69) Podiatric Physician September 30 even years

([71]70) Pre Need Funeral Arrangement

Sales Agent May 31 even years

([72]71) Private Probation Provider May 31 odd years

([73]72) Professional Counselor September 30 even years

([74]73) Professional Engineer March 31 odd years

([75]74) Professional Geologist March 31 odd years

([76]75) Professional Land Surveyor March 31 odd years

([77]76) Professional Structural March 31 odd years

Engineer

([78]77) Psychologist September 30 even years

([79]78) Radiolog[y]ic Technologist, May 31 odd

years

Radiology Practical Technician

Radiologist Assistant

([80]79) Recreational Therapy

Technician, Specialist,

Master Specialist May 31 odd years

([81]80) Registered Nurse January 31 odd years

([82]81) Respiratory Care September 30 even years

Practitioner

([83]82) Security Personnel November 30 even years

([84]83) Social Service Worker September 30 even years

([85]84) Speech-Language Pathologist May 31 odd years

([86]86) Veterinarian September 30 even years

(87) Vocational Rehabilitation Counselor March 31 odd years

(2) The following non-standard renewal terms and renewal or

extension cycles are established by license classification in

accordance with Subsection 58-1-308(1) and in accordance with

specific requirements of the license:

(a) Associate Marriage and Family Therapist licenses shall be

issued for a three year term and may be extended if the licensee

presents satisfactory evidence to the Division and the board that

reasonable progress is being made toward passing the qualifying

examinations or is otherwise on a course reasonably expected to lead

to licensure; but the period of the extension may not exceed two

years past the date the minimum supervised experience requirement

has been completed.

(b) Associate Professional Counselor licenses shall be issued

for a three year term and may be extended if the licensee presents

satisfactory evidence to the Division and the board that reasonable

progress is being made toward passing the qualifying examinations or

is otherwise on a course reasonably expected to lead to licensure.

(c) Certified Social Worker Intern licenses shall be issued

for a period of six months or until the examination is passed

whichever occurs first.

(d) Funeral Service Apprentice licenses shall be issued for a

two year term and may be extended for an additional two year term if

the licensee presents satisfactory evidence to the Division and the

board that reasonable progress is being made toward passing the

qualifying examinations or is otherwise on a course reasonably

expected to lead to licensure.

([f]e) Hearing Instrument Intern licenses shall be issued for

a three year term and may be extended if the licensee presents

satisfactory evidence to the Division and the Board that reasonable

progress is being made toward passing the qualifying examination,

but a circumstance arose beyond the control of the licensee, to

prevent the completion of the examination process.

([e]f) Psychology Resident licenses shall be issued for a two

year term and may be extended if the licensee presents satisfactory

evidence to the Division and the board that reasonable progress is

being made toward passing the qualifying examinations or is

otherwise on a course reasonably expected to lead to licensure; but

the period of the extension may not exceed two years past the date

the minimum supervised experience requirement has been completed.

(g) [Vocational Rehabilitation Counselor licenses will be

renewed annually on March 31.]Type I Foreign Trained Physician-

Educator licenses will be issued initially for a one-year term and

thereafter renewed every two years following issuance.

(h) Type II Foreign Trained Physician-Educator licenses will

be issued initially for an annual basis and thereafter renewed

annually up to four times following issuance if the licensee

continues to satisfy the requirements described in Subsection 58-67-

302.7(3) and completes the required continuing education

requirements established under Section 58-67-303.

R156-1-308c. Renewal of Licensure Procedures.

The procedures for renewal of licensure shall be as follows:

(1) The Division shall send a renewal notice to each licensee

at least 60 days prior to the expiration date shown on the

licensee's license. The notice shall include directions for the

licensee to renew the license via the Division's website.

(2)[(a)] Except as provided in Subsection [(2)(b)](4), renewal

notices shall be sent by mail deposited in the post office with

postage prepaid, addressed to the last mailing address shown on the

Division's automated license system.[ Such mailing shall constitute

legal notice. ]

(3) In accordance with Subsection 58-1-301.7(1), [It shall be

the duty and responsibility of ]each licensee is required to

maintain a current mailing address with the Division. In accordance

with Subsection 58-1-301.7(3), mailing to the last mailing address

furnished to the Division constitutes legal notice.

([b]4) If a licensee has authorized the Division to send a

renewal notice by email, a renewal notice may be sent by email to

the last email address shown on the Division's automated license

system. If selected as the exclusive method of receipt of renewal

notices, [S]such mailing shall constitute legal notice. It shall be

the duty and responsibility of [a]each licensee who authorizes the

Division to send a renewal notice by email to maintain a current

email address with the Division.

([3]5) Renewal notices shall provide that the renewal

requirements are outlined in the online renewal process and that

each licensee is required to document or certify that the licensee

meets the renewal requirements prior to renewal.

([4]6) Renewal notices shall advise each licensee that a

license that is not renewed prior to the expiration date shown on

the license automatically expires and that any continued practice

without a license constitutes a criminal offense under Subsection

58-1-501(1)(a).

([5]7) Licensees licensed during the last four months of a

renewal cycle shall be licensed for a full renewal cycle plus the

period of time remaining until the impending renewal date, rather

than being required to immediately renew their license.

R156-1-308g. Reinstatement of Licensure Which was Active and In

Good Standing at the Time of Expiration of Licensure - Requirements.

The following requirements shall apply to reinstatement of

licensure which was active and in good standing at the time of

expiration of licensure:

(1) In accordance with Subsection 58-1-308(5), if an

application for reinstatement is received by the Division between

the date of the expiration of the license and 30 days after the date

of the expiration of the license, the applicant shall:

(a) submit a completed renewal form as furnished by the

Division demonstrating compliance with requirements and/or

conditions of license renewal; and

(b) pay the established license renewal fee and a late fee.

(2) In accordance with Subsection 58-1-308(5), if an

application for reinstatement is received by the Division between 31

days after the expiration of the license and two years after the

date of the expiration of the license, the applicant shall:

(a) submit a completed renewal form as furnished by the

Division demonstrating compliance with requirements and/or

conditions of license renewal; and

(b) pay the established license renewal fee and reinstatement

fee.

(3) In accordance with Subsection 58-1-308(6)(a), if an

application for reinstatement is received by the Division more than

two years after the date the license expired and the applicant has

not been active in the licensed occupation or profession while in

the full-time employ of the United States government or under

license to practice that occupation or profession in any other state

or territory of the United States during the time the license was

expired, the applicant shall:

(a) submit an application for licensure complete with all

supporting documents as is required of an individual making an

initial application for license demonstrating the applicant meets

all current qualifications for licensure[ and compliance with

requirements and/or conditions of license reinstatement];

(b) provide information requested by the Division and board to

clearly demonstrate the applicant is currently competent to engage

in the occupation or profession for which reinstatement of licensure

is requested; and

(c) [if the applicant has not been engaged in unauthorized

practice of the applicant's occupation or profession following the

expiration of the applicant's license, ]pay the established license

fee for a new applicant for licensure[; and

(d) if the applicant has been engaged in unauthorized practice

of the applicant's occupation or profession following the expiration

of the applicant's license, pay the current license renewal fee

multiplied by the number of renewal periods for which the license

renewal fee has not been paid since the time of expiration of

license, plus a reinstatement fee].

(4) In accordance with Subsection 58-1-308(6)(b), if an

application for reinstatement is received by the Division more than

two years after the date the license expired but the applicant has

been active in the licensed occupation or profession while in the

full-time employ of the United States government or under license to

practice that occupation or profession in any other state or

territory of the United States shall:

(a) [provide documentation of prior licensure in the State of

Utah;

(b) ]provide documentation that the applicant has

continuously, since the expiration of the applicant's license in

Utah, been active in the licensed occupation or profession while in

the full-time employ of the United States government or under

license to practice that occupation or profession in any other state

or territory of the United States;

([c]b) provide documentation that the applicant has completed

or is in compliance with any renewal qualifications;

([d]c) provide documentation that the applicant's application

was submitted within six months after reestablishing domicile within

Utah or terminating full-time government service; and

([e]d) pay the established license renewal fee and the

reinstatement fee.

R156-1-50[2]1. Unprofessional Conduct.

"Unprofessional conduct" includes:

(1) surrendering licensure to any other licensing or

regulatory authority having jurisdiction over the licensee or

applicant in the same occupation or profession while an

investigation or inquiry into allegations of unprofessional or

unlawful conduct is in progress or after a charging document has

been filed against the applicant or licensee alleging unprofessional

or unlawful conduct;

(2) practicing a regulated occupation or profession in,

through, or with a limited liability company which has omitted the

words "limited company," "limited liability company," or the

abbreviation "L.C." or "L.L.C." in the commercial use of the name of

the limited liability company;

(3) practicing a regulated occupation or profession in,

through, or with a limited partnership which has omitted the words

"limited partnership," "limited," or the abbreviation "L.P." or

"Ltd" in the commercial use of the name of the limited partnership;

(4) practicing a regulated occupation or profession in,

through, or with a professional corporation which has omitted the

words "professional corporation" or the abbreviation "P.C." in the

commercial use of the name of the professional corporation;

(5) using a DBA (doing business as name) which has not been

properly registered with the Division of Corporations and with the

Division of Occupational and Professional Licensing; or

(6) failing, as a prescribing practitioner, to follow the

"Model Policy for the Use of Controlled Substances for the Treatment

of Pain", 2004, established by the Federation of State Medical

Boards, which is hereby adopted and incorporated by reference.

R156-1-502. Administrative Penalties.

(1) In accordance with Subsection 58-1-401(5) and Section 58-1-

502, except as otherwise provided by a specific chapter under Title

R156, the following fine schedule shall apply to citations issued

under the referenced authority:

TABLE

FINE SCHEDULE

FIRST OFFENSE

Violation Fine

58-1-501(1)(a) $ 500.00

58-1-501(1)(c) $ 800.00

SECOND OFFENSE

58-1-501(1)(a) $1,000.00

58-1-501(1)(c) $1,600.00

THIRD OFFENSE

Double the amount for a second offense with a maximum amount not to

exceed the maximum fine allowed under Subsection 58-1-

502(2)(j)(iii).

(2) Citations shall not be issued for third offenses, except

in extraordinary circumstances approved by the investigative

supervisor.

(3) If multiple offenses are cited on the same citation, the

fine shall be determined by evaluating the most serious offense.

(4) An investigative supervisor may authorize a deviation from

the fine schedule based upon the aggravating or mitigating

circumstances.

(5) The presiding officer for a contested citation shall have

the discretion, after a review of the aggravating and mitigating

circumstances, to increase or decrease the fine amount imposed by an

investigator based upon the evidence reviewed.

KEY: diversion programs, licensing, occupational licensing,

supervision

Date of Enactment or Last Substantive Amendment: [February 24,

]2011

Notice of Continuation: March 1, 2007

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

58-1-308; 58-1-501(4)