Bill Summary – FastDemocracy

Enrolled Copy                                                                          S.B. 36
                        PROFESSIONAL LICENSING AMENDMENTS
                                      2023 GENERAL SESSION
                                           STATE OF UTAH
                               Chief Sponsor: Curtis S. Bramble
                                 House Sponsor: A. Cory Maloy
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 LONG TITLE
 General Description:
        This bill modifies provisions related to professional licensing.
 Highlighted Provisions:
        This bill:
        < creates and modifies definitions;
        < clarifies the purpose of recommendations provided by a professional licensing board
 to the director of the Division of Professional Licensing (division);
        < authorizes the director of the division to designate certain professional licensing
 board members to preside over adjudicative proceedings concerning professional
 licenses;
        < creates a process for review of the designated professional licensing board members'
 recommended order after an adjudicative proceeding;
        < modifies professional license application requirements regarding proof of identity;
        < allows the division to designate information regarding proof of identity that is
 included with a professional license application as a private government record;
        < clarifies supervision requirements for a physician assistant performing a cosmetic
 medical procedure;
        < removes provisions requiring the division to administer a radiology practical
 technician examination for radiology-related license applicants;
        < modifies penalties for unlawful conduct by a person licensed to engage in a
 construction trade;
        < removes requirements a licensed advanced practice registered nurse is required to
       S.B. 36                                                                          Enrolled Copy
 meet before prescribing or administering a Schedule II controlled substance;
        < removes provisions prohibiting the division from issuing or renewing a nurse's
 license for past criminal convictions;
        < modifies licensing requirements for certain funeral service establishments and
 professionals, landscape architects, security personnel, and deception detection
 examiners;
        < modifies background check requirements for licensed pharmacies, alarm companies,
 security car companies, and deception detector examiners;
        < grants administrative rulemaking authority; and
        < makes technical changes.
 Money Appropriated in this Bill:
        None
 Other Special Clauses:
        None
 Utah Code Sections Affected:
 AMENDS:
        58-1-108, as last amended by Laws of Utah 2008, Chapter 382
        58-1-109, as last amended by Laws of Utah 2016, Chapter 238
        58-1-201, as last amended by Laws of Utah 2013, Chapter 262
        58-1-202, as last amended by Laws of Utah 2022, Chapter 415
        58-1-301, as last amended by Laws of Utah 2022, Chapters 413, 415
        58-1-301.5, as last amended by Laws of Utah 2022, Chapters 221, 438 and 466
        58-1-501, as last amended by Laws of Utah 2020, Chapters 289, 339
        58-1-506, as last amended by Laws of Utah 2016, Chapter 75
        58-9-306, as last amended by Laws of Utah 2007, Chapter 144
        58-17b-102, as last amended by Laws of Utah 2021, Chapters 127, 340
        58-17b-306, as last amended by Laws of Utah 2017, Chapter 384
        58-17b-307, as last amended by Laws of Utah 2018, Chapter 318
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       Enrolled Copy                                                                            S.B. 36
        58-17b-625, as last amended by Laws of Utah 2021, Chapter 340
        58-31b-102, as last amended by Laws of Utah 2022, Chapter 277
        58-31b-302, as last amended by Laws of Utah 2022, Chapter 277
        58-31b-502, as last amended by Laws of Utah 2022, Chapter 290
        58-31b-803, as last amended by Laws of Utah 2022, Chapter 274
        58-53-302, as last amended by Laws of Utah 2009, Chapter 183
        58-54-302, as last amended by Laws of Utah 2020, Chapter 339
        58-55-102, as last amended by Laws of Utah 2022, Chapters 415, 446
        58-55-302, as last amended by Laws of Utah 2022, Chapter 415
        58-55-303, as last amended by Laws of Utah 2013, Chapter 57
        58-55-503, as last amended by Laws of Utah 2022, Chapter 415
        58-63-102, as last amended by Laws of Utah 2022, Chapter 415
        58-63-302, as last amended by Laws of Utah 2022, Chapter 415
        58-64-302, as last amended by Laws of Utah 2020, Chapters 154, 339
 ENACTS:
        58-55-302.1, Utah Code Annotated 1953
        58-63-302.1, Utah Code Annotated 1953
        58-64-302.1, Utah Code Annotated 1953
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 Be it enacted by the Legislature of the state of Utah:
        Section 1. Section 58-1-108 is amended to read:
        58-1-108. Adjudicative proceedings.
        (1) The division and all boards created under [the authority of] this title, including the
 members of a board designated under Subsection 58-1-109(3), 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
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        S.B. 36                                                                         Enrolled Copy
 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.
        Section 2. Section 58-1-109 is amended to read:
        58-1-109. Presiding officers -- Content of orders -- Recommended orders -- Final
 orders -- Appeal of orders.
        (1) (a) Unless otherwise specified by statute or rule made in accordance with Title 63G,
 Chapter 3, Utah Administrative Rulemaking Act, the presiding officer for adjudicative
 proceedings before the division [shall be] is the director. [However, pursuant to]
        (b) Under 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) (a) 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.
        (b) (i) If the licensing board is composed of seven or more members, the director may
 designate any odd number of board members to represent the licensing board as the presiding
 officer under Subsection (3)(a).
        (ii) Notwithstanding Subsection 58-1-201(3), the vote of the majority of the board
 members designated under Subsection (3)(b)(i) is sufficient authority for the licensing board to
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        Enrolled Copy                                                                                S.B. 36
 act as the presiding officer.
          (4) (a) 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] on the record developed at the hearing
 determining all issues pending before the division.
          (b) If the director designates certain licensing board members under Subsection (3)(b)
 to represent the licensing board described in Subsection (3)(a), the person who is aggrieved by
 the designated board members' recommended order may petition the licensing board to review
 the designated board members' recommended order.
          (c) The licensing board shall issue a recommended order based on the review under
 Subsection (4)(b) that shall become the recommended order of the presiding officer.
          (5) (a) (i) The director shall issue a final order affirming the recommended order or
 modifying or rejecting all or any part of the recommended order and entering new findings of
 fact, conclusions of law, statement of reasons, and order based [upon] on the director's personal
 attendance at the hearing or a review of the record developed at the hearing.
          (ii) Before modifying or rejecting a recommended order, the director shall consult with
 the presiding officer who issued the recommended order.
          (b) (i) 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.
          (ii) The executive director's decision shall become the final order of the division.
          (c) This [subsection] Subsection (5) 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] on 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 initiate additional fact finding or
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        S.B. 36                                                                         Enrolled Copy
 issue a final order within 20 calendar days after the [date of the] day on which the
 recommended order of the presiding officer is issued, 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.
         Section 3. Section 58-1-201 is amended to read:
         58-1-201. Boards -- Appointment -- Membership -- Terms -- Vacancies --
 Quorum -- Per diem and expenses -- Chair -- Financial interest or faculty position in
 professional school that teaches continuing education prohibited.
         (1) (a) (i) The executive director shall appoint the members of the boards established
 under this title.
         (ii) In appointing [these] the board members the executive director shall give
 consideration to recommendations by members of the respective [occupations and professions
 and by their] professions and the professions' organizations.
         (b) Each board shall be composed of five members, four of whom [shall be] are
 licensed or certified practitioners in good standing of the [occupation or] profession the board
 represents, and one of whom [shall be] is a member of the general public, unless otherwise
 provided under the specific licensing chapter.
         (c) (i) The name of each [person] individual appointed to a board 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] individual 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 board member or reappointed board
 member to a four-year term.
         (ii) Upon the expiration of the term of a board member, the board member shall
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        Enrolled Copy                                                                              S.B. 36
 continue to serve until a successor is appointed, but for a period not to exceed six months from
 the expiration date of the board 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 board membership for any reason, the
 replacement shall be appointed for the unexpired term.
          (ii) After filling that term, the replacement board member may be appointed for only
 one additional full term.
          (e) The director, with the approval of the executive director, may remove a board
 member and replace the board member in accordance with this section for the following
 reasons:
          (i) the board member fails or refuses to fulfill the responsibilities and duties of a board
 member, including attendance at board meetings;
          (ii) the board member engages in unlawful or unprofessional conduct; or
          (iii) if appointed to the board position as a licensed member of the board, the board
 member fails to maintain a license that is active and in good standing.
          (3) (a) A majority of the board members constitutes a quorum.
          (b) [A] Except as provided in Subsection 58-1-109(3), a quorum is sufficient authority
 for the board to act.
          (4) A board member may not receive compensation or benefits for the board 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
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        S.B. 36                                                                            Enrolled Copy
        (c) rules made by the Division of Finance [pursuant to] under Sections 63A-3-106 and
 63A-3-107.
        (5) Each board shall annually designate one of [its] the board's 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 a financial interest
 in, a vocational or professional college or school that provides continuing education to any
 licensee if that continuing education is required by statute or rule made in accordance with
 Title 63G, Chapter 3, Utah Administrative Rulemaking Act.
        Section 4. Section 58-1-202 is amended to read:
        58-1-202. Boards -- Duties, functions, and responsibilities.
        (1) [The] Except as provided in Subsection (2), the duties, functions, and
 responsibilities of each board established under this title include the following:
        (a) recommending to the director appropriate rules and statutory changes to improve
 the health, safety, and financial welfare of the public, including changes to remove regulations
 that are no longer necessary or effective in protecting the public and enhancing commerce;
        (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] the
 board represents; and
        (f) in accordance with Section 58-1-109, 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, Utah
 Construction Trades Licensing Act.
        (3) (a) Each board or commission established under this title may recommend to the
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        Enrolled Copy                                                                             S.B. 36
 appropriate legislative committee whether the board or commission supports a change to a
 licensing act.
        (b) This Subsection (3) does not:
        (i) require a board's approval to amend a practice act; [a