Section 334.102

Title XXII OCCUPATIONS AND PROFESSIONS

Chapter 334

Effective - 28 Aug 2011   

  334.102.  Emergency suspension or restriction, when, procedure — removal from record, when — disciplinary proceedings permitted, when — judicial review, when. — 1.  The board may apply to the administrative hearing commission for an emergency suspension or restriction of a licensee 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.

  2.  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.

  3.  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 1 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.

  4.  (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.

  5.  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.

  6.  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.

  7.  (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 when disciplining licensees of that same profession.

  8.  A final decision of the administrative hearing commission or the board shall be subject to judicial review pursuant to chapter 536.

­­--------

(L. 1986 S.B. 663, A.L. 1990 S.B. 737, A.L. 2011 H.B. 265)