Section 335.066

Title XXII OCCUPATIONS AND PROFESSIONS

Chapter 335

Effective - 28 Aug 2013, 3 histories, see footnote   (history) 

  335.066.  Denial, revocation, or suspension of license, grounds for, civil immunity for providing information — complaint procedures. — 1.  The board may refuse to issue or reinstate any certificate of registration or authority, permit or license required pursuant to chapter 335 for one or any combination of causes stated in subsection 2 of this section or the board may, as a condition to issuing or reinstating any such permit or license, require a person to submit himself or herself for identification, intervention, treatment, or rehabilitation by the impaired nurse program as provided in section 335.067.  The board shall notify the applicant in writing of the reasons for the refusal and shall advise the applicant of his or her right to file a complaint with the administrative hearing commission as provided by chapter 621.

  2.  The board may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621 against any holder of any certificate of registration or authority, permit or license required by sections 335.011 to 335.096 or any person who has failed to renew or has surrendered his or her certificate of registration or authority, permit or license for any one or any combination of the following causes:

  (1)  Use or unlawful possession of any controlled substance, as defined in chapter 195, or alcoholic beverage to an extent that such use impairs a person's ability to perform the work of any profession licensed or regulated by sections 335.011 to 335.096;

  (2)  The person has been finally adjudicated and found guilty, or entered a plea of guilty or nolo contendere, in a criminal prosecution pursuant to the laws of any state or of the United States, for any offense reasonably related to the qualifications, functions or duties of any profession licensed or regulated pursuant to sections 335.011 to 335.096, for any offense an essential element of which is fraud, dishonesty or an act of violence, or for any offense involving moral turpitude, whether or not sentence is imposed;

  (3)  Use of fraud, deception, misrepresentation or bribery in securing any certificate of registration or authority, permit or license issued pursuant to sections 335.011 to 335.096 or in obtaining permission to take any examination given or required pursuant to sections 335.011 to 335.096;

  (4)  Obtaining or attempting to obtain any fee, charge, tuition or other compensation by fraud, deception or misrepresentation;

  (5)  Incompetency, gross negligence, or repeated negligence in the performance of the functions or duties of any profession licensed or regulated by chapter 335.  For the purposes of this subdivision, "repeated negligence" means the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member of the applicant's or licensee's profession;

  (6)  Misconduct, fraud, misrepresentation, dishonesty, unethical conduct, or unprofessional conduct in the performance of the functions or duties of any profession licensed or regulated by this chapter, including, but not limited to, the following:

  (a)  Willfully and continually overcharging or overtreating patients; or charging for visits which did not occur unless the services were contracted for in advance, or for services which were not rendered or documented in the patient's records;

  (b)  Attempting, directly or indirectly, by way of intimidation, coercion or deception, to obtain or retain a patient or discourage the use of a second opinion or consultation;

  (c)  Willfully and continually performing inappropriate or unnecessary treatment, diagnostic tests, or nursing services;

  (d)  Delegating professional responsibilities to a person who is not qualified by training, skill, competency, age, experience, or licensure to perform such responsibilities;

  (e)  Performing nursing services beyond the authorized scope of practice for which the individual is licensed in this state;

  (f)  Exercising influence within a nurse-patient relationship for purposes of engaging a patient in sexual activity;

  (g)  Being listed on any state or federal sexual offender registry;

  (h)  Failure of any applicant or licensee to cooperate with the board during any investigation;

  (i)  Failure to comply with any subpoena or subpoena duces tecum from the board or an order of the board;

  (j)  Failure to timely pay license renewal fees specified in this chapter;

  (k)  Violating a probation agreement, order, or other settlement agreement with this board or any other licensing agency;

  (l)  Failing to inform the board of the nurse's current residence;

  (m)  Any other conduct that is unethical or unprofessional involving a minor;

  (7)  Violation of, or assisting or enabling any person to violate, any provision of sections 335.011 to 335.096, or of any lawful rule or regulation adopted pursuant to sections 335.011 to 335.096;

  (8)  Impersonation of any person holding a certificate of registration or authority, permit or license or allowing any person to use his or her certificate of registration or authority, permit, license or diploma from any school;

  (9)  Disciplinary action against the holder of a license or other right to practice any profession regulated by sections 335.011 to 335.096 granted by another state, territory, federal agency or country upon grounds for which revocation or suspension is authorized in this state;

  (10)  A person is finally adjudged insane or incompetent by a court of competent jurisdiction;

  (11)  Assisting or enabling any person to practice or offer to practice any profession licensed or regulated by sections 335.011 to 335.096 who is not registered and currently eligible to practice pursuant to sections 335.011 to 335.096;

  (12)  Issuance of a certificate of registration or authority, permit or license based upon a material mistake of fact;

  (13)  Violation of any professional trust or confidence;

  (14)  Use of any advertisement or solicitation which is false, misleading or deceptive to the general public or persons to whom the advertisement or solicitation is primarily directed;

  (15)  Violation of the drug laws or rules and regulations of this state, any other state or the federal government;

  (16)  Placement on an employee disqualification list or other related restriction or finding pertaining to employment within a health-related profession issued by any state or federal government or agency following final disposition by such state or federal government or agency;

  (17)  Failure to successfully complete the impaired nurse program;

  (18)  Knowingly making or causing to be made a false statement or misrepresentation of a material fact, with intent to defraud, for payment pursuant to the provisions of chapter 208 or chapter 630, or for payment from Title XVIII or Title XIX of the federal Medicare program;

  (19)  Failure or refusal to properly guard against contagious, infectious, or communicable diseases or the spread thereof; maintaining an unsanitary office or performing professional services under unsanitary conditions; or failure to report the existence of an unsanitary condition in the office of a physician or in any health care facility to the board, in writing, within thirty days after the discovery thereof;

  (20)  A pattern of personal use or consumption of any controlled substance unless it is prescribed, dispensed, or administered by a provider who is authorized by law to do so;

  (21)  Habitual intoxication or dependence on alcohol, evidence of which may include more than one alcohol-related enforcement contact as defined by section 302.525;

  (22)  Failure to comply with a treatment program or an aftercare program entered into as part of a board order, settlement agreement, or licensee's professional health program.

  3.  After the filing of such complaint, the proceedings shall be conducted in accordance with the provisions of chapter 621.  Upon a finding by the administrative hearing commission that the grounds, provided in subsection 2 of this section, for disciplinary action are met, the board may, singly or in combination, censure or place the person named in the complaint on probation on such terms and conditions as the board deems appropriate for a period not to exceed five years, or may suspend, for a period not to exceed three years, or revoke the license, certificate, or permit.

  4.  For any hearing before the full board, the board shall cause the notice of the hearing to be served upon such licensee in person or by certified mail to the licensee at the licensee's last known address.  If service cannot be accomplished in person or by certified mail, notice by publication as described in subsection 3 of section 506.160 shall be allowed; any representative of the board is authorized to act as a court or judge would in that section; any employee of the board is authorized to act as a clerk would in that section.

  5.  An individual whose license has been revoked shall wait one year from the date of revocation to apply for relicensure.  Relicensure shall be at the discretion of the board after compliance with all the requirements of sections 335.011 to 335.096 relative to the licensing of an applicant for the first time.

  6.  The board may notify the proper licensing authority of any other state concerning the final disciplinary action determined by the board on a license in which the person whose license was suspended or revoked was also licensed of the suspension or revocation.

  7.  Any person, organization, association or corporation who reports or provides information to the board of nursing pursuant to the provisions of sections 335.011 to 335.259^* and who does so in good faith shall not be subject to an action for civil damages as a result thereof.

  8.  The board may apply to the administrative hearing commission for an emergency suspension or restriction of a license for the following causes:

  (1)  Engaging in sexual conduct ^** as defined in section 566.010, with a patient who is not the licensee's spouse, regardless of whether the patient consented;

  (2)  Engaging in sexual misconduct with a minor or person the licensee believes to be a minor.  "Sexual misconduct" means any conduct of a sexual nature which would be illegal under state or federal law;

  (3)  Possession of a controlled substance in violation of chapter 195 or any state or federal law, rule, or regulation, excluding record-keeping violations;

  (4)  Use of a controlled substance without a valid prescription;

  (5)  The licensee is adjudicated incapacitated or disabled by a court of competent jurisdiction;

  (6)  Habitual intoxication or dependence upon alcohol or controlled substances or failure to comply with a treatment or aftercare program entered into pursuant to a board order, settlement agreement, or as part of the licensee's professional health program;

  (7)  A report from a board-approved facility or a professional health program stating the licensee is not fit to practice.  For purposes of this section, a licensee is deemed to have waived all objections to the admissibility of testimony from the provider of the examination and admissibility of the examination reports.  The licensee shall sign all necessary releases for the board to obtain and use the examination during a hearing; or

  (8)  Any conduct for which the board may discipline that constitutes a serious danger to the health, safety, or welfare of a patient or the public.

  9.  The board shall submit existing affidavits and existing certified court records together with a complaint alleging the facts in support of the board's request for an emergency suspension or restriction to the administrative hearing commission and shall supply the administrative hearing commission with the last home or business addresses on file with the board for the licensee.  Within one business day of the filing of the complaint, the administrative hearing commission shall return a service packet to the board.  The service packet shall include the board's complaint and any affidavits or records the board intends to rely on that have been filed with the administrative hearing commission.  The service packet may contain other information in the discretion of the administrative hearing commission.  Within twenty-four hours of receiving the packet, the board shall either personally serve the licensee or leave a copy of the service packet at all of the licensee's current addresses on file with the board.  Prior to the hearing, the licensee may file affidavits and certified court records for consideration by the administrative hearing commission.

  10.  Within five days of the board's filing of the complaint, the administrative hearing commission shall review the information submitted by the board and the licensee and shall determine based on that information if probable cause exists pursuant to subsection 8 of this section and shall issue its findings of fact and conclusions of law.  If the administrative hearing commission finds that there is probable cause, the administrative hearing commission shall enter the order requested by the board.  The order shall be effective upon personal service or by leaving a copy at all of the licensee's current addresses on file with the board.

  11.  (1)  The administrative hearing commission shall hold a hearing within forty-five days of the board's filing of the complaint to determine if cause for discipline exists.  The administrative hearing commission may grant a request for a continuance, but shall in any event hold the hearing within one hundred twenty days of the board's initial filing.  The board shall be granted leave to amend its complaint if it is more than thirty days prior to the hearing.  If less than thirty days, the board may be granted leave to amend if public safety requires.

  (2)  If no cause for discipline exists, the administrative hearing commission shall issue findings of fact, conclusions of law, and an order terminating the emergency suspension or restriction.

  (3)  If cause for discipline exists, the administrative hearing commission shall issue findings of fact and conclusions of law and order the emergency suspension or restriction to remain in full force and effect pending a disciplinary hearing before the board.  The board shall hold a hearing following the certification of the record by the administrative hearing commission and may impose any discipline otherwise authorized by state law.

  12.  Any action under this section shall be in addition to and not in lieu of any discipline otherwise in the board's power to impose and may be brought concurrently with other actions.

  13.  If the administrative hearing commission does not find probable cause and does not grant the emergency suspension or restriction, the board shall remove all reference to such emergency suspension or restriction from its public records.  Records relating to the suspension or restriction shall be maintained in the board's files.  The board or licensee may use such records in the course of any litigation to which they are both parties.  Additionally, such records may be released upon a specific, written request of the licensee.

  14.  If the administrative hearing commission grants temporary authority to the board to restrict or suspend the nurse's license, such temporary authority of the board shall become final authority if there is no request by the nurse for a full hearing within thirty days of the preliminary hearing.  The administrative hearing commission shall, if requested by the nurse named in the complaint, set a date to hold a full hearing under the provisions of chapter 621 regarding the activities alleged in the initial complaint filed by the board.

  15.  If the administrative hearing commission refuses to grant temporary authority to the board or restrict or suspend the nurse's license under subsection 8 of this section, such dismissal shall not bar the board from initiating a subsequent disciplinary action on the same grounds.

  16.  (1)  The board may initiate a hearing before the board for discipline of any licensee's license or certificate upon receipt of one of the following:

  (a)  Certified court records of a finding of guilt or plea of guilty or nolo contendere in a criminal prosecution under the laws of any state or of the United States for any offense involving the qualifications, functions, or duties of any profession licensed or regulated under this chapter, for any offense involving fraud, dishonesty, or an act of violence, or for any offense involving moral turpitude, whether or not sentence is imposed;

  (b)  Evidence of final disciplinary action against the licensee's license, certification, or registration issued by any other state, by any other agency or entity of this state or any other state, or the United States or its territories, or any other country;

  (c)  Evidence of certified court records finding the licensee has been judged incapacitated or disabled under Missouri law or under the laws of any other state or of the United States or its territories.

  (2)  The board shall provide the licensee not less than ten days' notice of any hearing held pursuant to chapter 536.

  (3)  Upon a finding that cause exists to discipline a licensee's license, the board may impose any discipline otherwise available.

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(L. 1975 S.B. 108 § 12, A.L. 1981 S.B. 16, A.L. 1995 S.B. 452, A.L. 1999 H.B. 343, A.L. 2007 H.B. 780 merged with S.B. 308, A.L. 2013 H.B. 315)

*Section 335.259 was repealed by S.B. 52, 1993.

**Word "in" appears here in original rolls.