58-1-404 - Diversion -- Procedure.
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 thecategory of unprofessional or unlawful conduct on the condition that the licensee agrees toparticipate in an educational or rehabilitation program or fulfill some other condition.
(2) (a) (i) The director may establish, as circumstances require, a diversion advisorycommittee for each occupation or profession or similar groups of occupations or professionslicensed 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 similaroccupation or profession as the person whose conduct is the subject of the committee'sconsideration.
(ii) The director shall appoint the members of a diversion advisory committee fromnominations submitted by the corresponding board established for the same or similar occupationor profession under Section 58-1-201 or from other qualified nominees developed by orsubmitted to the division.
(iii) Committee members may not serve concurrently as members of the correspondingboard.
(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 advisorycommittee 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 noadjudicative proceeding has been commenced;
(b) at any time prior to the conclusion of a hearing under Section 63G-4-206 when anadjudicative 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 within the category of unprofessional orunlawful conduct which may be subject to diversion.
(b) A licensee may be eligible for a diversion program only once for the same or similaroffense, whether the diversion program was in this state or another jurisdiction, and is noteligible if previously disciplined by the division, by a licensing agency of another state, or by afederal government agency for the same or a similar offense.
(c) The term of a diversion agreement shall be five years or less, but may be extended foran 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 judicialreview.
(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 betweenthe division, through its director, and the licensee, which specifies formal terms and conditionsthe licensee must fulfill in order to comply with the diversion program.
(b) (i) A diversion agreement shall contain a full detailed statement of the requirementsagreed to by the licensee and a full detailed stipulation of the facts upon which the diversionagreement is premised.
(ii) The facts stipulated in the diversion agreement shall constitute binding admissions ofthe licensee:
(A) in any proceeding under Subsection (6)(c) or (6)(d) to terminate the diversionagreement and impose disciplinary sanctions against the licensee; and
(B) in any disciplinary proceeding based on unprofessional or unlawful conduct that isnot the basis of the diversion agreement.
(c) The diversion agreement shall provide that if the licensee makes an intentionalmaterial misrepresentation of fact in the stipulation of facts contained in the diversion agreement,the director shall initiate the procedures set forth in Subsection (13) to terminate the diversionagreement and issue an order of license revocation.
(d) (i) The diversion agreement shall provide that if the licensee fails to comply with itsterms, the director shall initiate the procedures set forth in Subsection (14) to terminate thediversion agreement and issue an order of license suspension, which shall be stayed in favor ofan 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 ofthe 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, aspart 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 waspremised;
(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 intentionalmisrepresentation 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 theterms of the diversion agreement.
(7) (a) If the division and the licensee enter into a diversion agreement after the divisionhas commenced an adjudicative proceeding against the licensee, the director shall stay thatproceeding pending completion of the diversion agreement.
(b) The order staying the adjudicative proceeding shall be filed in that proceeding andmay reference the diversion agreement.
(8) (a) Upon successful completion of a diversion agreement, the director shall dismissany charges under the director's jurisdiction of unprofessional or unlawful conduct that were filedagainst 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 whichformed the basis of the completed diversion agreement.
(c) Neither the execution of a diversion agreement nor the dismissal of filed chargesconstitute disciplinary action, and no report of either may be made to disciplinary databases.
(d) The division may consider the completion of a diversion program and the contents ofthe diversion agreement in determining the appropriate disciplinary action if the licensee ischarged in the future with the same or similar conduct.
(e) The order of dismissal shall be filed in the adjudicative proceeding in which themisconduct was charged and may reference the diversion agreement.
(9) (a) Acceptance of the licensee into diversion does not preclude the division frominvestigating or continuing to investigate the licensee for any unlawful or unprofessional conductcommitted before, during, or after participation in the diversion program.
(b) Acceptance of the licensee into diversion does not preclude the division from takingdisciplinary action or continuing to take disciplinary action against the licensee for unlawful orunprofessional conduct committed before, during, or after participation in the diversion program,except for that conduct which formed the basis for the diversion agreement.
(c) Any licensee terminated from the diversion program for failure to comply with thediversion 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 thediversion agreement.
(10) The classification, retention, and disclosure of records relating to a licensee'sparticipation in the diversion program is governed by Title 63G, Chapter 2, Government RecordsAccess and Management Act, except that any provision in the diversion agreement whichaddresses access to or release of diversion records regarding the licensee shall govern the accessto and release of those records.
(11) Notwithstanding any other provision of this section, the fact that the licenseecompleted a diversion program and the contents of the diversion agreement itself may beconsidered by the division in determining the appropriate disciplinary action if the licensee ischarged 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 theattention of the director that the licensee made an intentional material misrepresentation of fact inthe stipulation of facts contained in the diversion agreement, the director shall cause to be servedupon the licensee an order to show cause specifying the information relied upon by the directorand setting a time and place for hearing to determine whether or not the licensee made theintentional material misrepresentation of fact and whether the agreement should be terminated onthat ground.
(b) Proceedings to terminate a diversion agreement on the grounds that the licensee madean intentional material misrepresentation of fact in the stipulation of facts contained in thediversion 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 shallcontain all of the information specified in Subsection 63G-4-201(2), except a statement that awritten 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 haveaccess 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 agreementor of an order of license revocation pursuant to this Subsection (13) shall be limited to thedivision director's findings of fact, conclusions of law, and order which arose out of the order toshow cause proceeding.
(c) Upon finding the licensee made an intentional material misrepresentation of fact inthe stipulation of facts contained in the diversion agreement and that terminating the agreement isin the best interest of the public, and issuing an order to that effect, the director shall issue anorder of license revocation, revoking the licensee's professional license.
(d) The order terminating the diversion agreement and the order of license revocationshall include findings of fact and conclusions of law as determined by the director following thehearing or as otherwise stipulated and agreed to by the parties.
(e) If the diversion agreement being terminated was entered into after the division hadcommenced an adjudicative proceeding against the licensee, that adjudicative proceeding shall beconsidered to be merged into the order of license revocation and it may not constitute a basis forany separate disciplinary action against the licensee.
(f) The order terminating the diversion agreement and the order of license revocationshall 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 theattention of the director that the licensee has violated the diversion agreement and if it appears inthe best interest of the public to proceed with charges, the director, after consultation with thediversion advisory committee, shall cause to be served upon the licensee an order to show causespecifying the facts relied upon by the director and setting a time and place for hearing todetermine whether or not the licensee has violated the diversion agreement and whether theagreement should be terminated.
(b) Proceedings to terminate a diversion agreement and to issue an order of licensesuspension and probation, and proceedings to terminate the probation and lift the stay of a licensesuspension, shall comply with Title 63G, Chapter 4, Administrative Procedures Act, except asfollows:
(i) the notice of agency action shall be in the form of an order to show cause, which shallcontain all of the information specified in Subsection 63G-4-201(2), except a statement that awritten 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 tocompel production of necessary evidence on behalf of either party and all parties shall haveaccess 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 agreementor of an order of license suspension and probation pursuant to this Subsection (14) shall belimited to the division director's findings of fact, conclusions of law, and order which arose out ofthe order to show cause proceeding.
(c) (i) Upon finding the licensee has violated the diversion agreement and thatterminating 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 professionallicense, but shall stay that suspension in favor of an order of probation, consisting of the sameterms as those which comprised the diversion agreement.
(ii) The period of probation shall be the time period which remained under the diversionagreement, 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 havean active license in the state.
(d) (i) The order terminating the diversion agreement and the order of license suspensionand probation shall include findings of fact and conclusions of law as determined by the directorfollowing 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 thediversion agreement and any additional facts as the director may determine in the course of thehearing.
(e) If the diversion agreement being terminated was entered into after the division hadcommenced an adjudicative proceeding against the licensee, that adjudicative proceeding shall beconsidered to be merged into the order of license suspension and probation and it may notconstitute a basis for any separate disciplinary action against the licensee.
(f) The order terminating the diversion agreement and the order of license suspensionand 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 beamended 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 issubject to agency reconsideration under Section 63G-4-302.
(h) (i) If, during the course of probation, the director has reason to believe the licenseehas violated the order of suspension and probation, the director shall cause to be served upon thelicensee an order to show cause why the probation should not be terminated and the stay ofsuspension lifted.
(ii) The order to show cause shall specify the facts relied upon by the director and shallset a time and place for hearing before the director to determine whether or not the licensee hasviolated the order of suspension and probation and whether that order should be terminated andthe stay of suspension lifted.
(15) (a) Nothing in this section precludes the division from issuing an emergency orderpursuant to Section 63G-4-502.
(b) If the division issues an emergency order against a licensee who is subject to adiversion agreement with the division, that diversion agreement shall be immediately andautomatically terminated upon the issuance of the emergency order, without compliance with theprovisions 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 thediversion agreement.
(ii) The request shall be considered a request for agency action and shall comply with therequirements 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 inSubsection 58-1-401(5) shall be tolled during a diversion program.
Amended by Chapter 382, 2008 General Session