334.100. Denial, revocation or suspension of license, alternatives, grounds for--reinstatement provisions.
Denial, revocation or suspension of license, alternatives, groundsfor--reinstatement provisions.
334.100. 1. The board may refuse to issue or renew any certificateof registration or authority, permit or license required pursuant to thischapter for one or any combination of causes stated in subsection 2 of thissection. The board shall notify the applicant in writing of the reasonsfor the refusal and shall advise the applicant of the applicant's right tofile a complaint with the administrative hearing commission as provided bychapter 621, RSMo. As an alternative to a refusal to issue or renew anycertificate, registration or authority, the board may, at its discretion,issue a license which is subject to probation, restriction or limitation toan applicant for licensure for any one or any combination of causes statedin subsection 2 of this section. The board's order of probation,limitation or restriction shall contain a statement of the disciplineimposed, the basis therefor, the date such action shall become effective,and a statement that the applicant has thirty days to request in writing ahearing before the administrative hearing commission. If the board issuesa probationary, limited or restricted license to an applicant forlicensure, either party may file a written petition with the administrativehearing commission within thirty days of the effective date of theprobationary, limited or restricted license seeking review of the board'sdetermination. If no written request for a hearing is received by theadministrative hearing commission within the thirty-day period, the rightto seek review of the board's decision shall be considered as waived.
2. The board may cause a complaint to be filed with theadministrative hearing commission as provided by chapter 621, RSMo, againstany holder of any certificate of registration or authority, permit orlicense required by this chapter or any person who has failed to renew orhas surrendered the person's certificate of registration or authority,permit or license for any one or any combination of the following causes:
(1) Use of any controlled substance, as defined in chapter 195, RSMo,or alcoholic beverage to an extent that such use impairs a person's abilityto perform the work of any profession licensed or regulated by thischapter;
(2) The person has been finally adjudicated and found guilty, orentered a plea of guilty or nolo contendere, in a criminal prosecutionunder the laws of any state or of the United States, for any offensereasonably related to the qualifications, functions or duties of anyprofession licensed or regulated pursuant to this chapter, for any offensean essential element of which is fraud, dishonesty or an act of violence,or for any offense involving moral turpitude, whether or not sentence isimposed;
(3) Use of fraud, deception, misrepresentation or bribery in securingany certificate of registration or authority, permit or license issuedpursuant to this chapter or in obtaining permission to take any examinationgiven or required pursuant to this chapter;
(4) Misconduct, fraud, misrepresentation, dishonesty, unethicalconduct or unprofessional conduct in the performance of the functions orduties of any profession licensed or regulated by this chapter, including,but not limited to, the following:
(a) Obtaining or attempting to obtain any fee, charge, tuition orother compensation by fraud, deception or misrepresentation; willfully andcontinually overcharging or overtreating patients; or charging for visitsto the physician's office which did not occur unless the services werecontracted for in advance, or for services which were not rendered ordocumented 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 useof a second opinion or consultation;
(c) Willfully and continually performing inappropriate or unnecessarytreatment, diagnostic tests or medical or surgical services;
(d) Delegating professional responsibilities to a person who is notqualified by training, skill, competency, age, experience or licensure toperform such responsibilities;
(e) Misrepresenting that any disease, ailment or infirmity can becured by a method, procedure, treatment, medicine or device;
(f) Performing or prescribing medical services which have beendeclared by board rule to be of no medical or osteopathic value;
(g) Final disciplinary action by any professional medical orosteopathic association or society or licensed hospital or medical staff ofsuch hospital in this or any other state or territory, whether agreed tovoluntarily or not, and including, but not limited to, any removal,suspension, limitation, or restriction of the person's license or staff orhospital privileges, failure to renew such privileges or license for cause,or other final disciplinary action, if the action was in any way related tounprofessional conduct, professional incompetence, malpractice or any otherviolation of any provision of this chapter;
(h) Signing a blank prescription form; or dispensing, prescribing,administering or otherwise distributing any drug, controlled substance orother treatment without sufficient examination, or for other than medicallyaccepted therapeutic or experimental or investigative purposes dulyauthorized by a state or federal agency, or not in the course ofprofessional practice, or not in good faith to relieve pain and suffering,or not to cure an ailment, physical infirmity or disease, except asauthorized in section 334.104;
(i) Exercising influence within a physician-patient relationship forpurposes of engaging a patient in sexual activity;
(j) Terminating the medical care of a patient without adequate noticeor without making other arrangements for the continued care of the patient;
(k) Failing to furnish details of a patient's medical records toother treating physicians or hospitals upon proper request; or failing tocomply with any other law relating to medical records;
(l) Failure of any applicant or licensee, other than the licenseesubject to the investigation, to cooperate with the board during anyinvestigation;
(m) Failure to comply with any subpoena or subpoena duces tecum fromthe board or an order of the board;
(n) Failure to timely pay license renewal fees specified in thischapter;
(o) Violating a probation agreement with this board or any otherlicensing agency;
(p) Failing to inform the board of the physician's current residenceand business address;
(q) Advertising by an applicant or licensee which is false ormisleading, or which violates any rule of the board, or which claimswithout substantiation the positive cure of any disease, or professionalsuperiority to or greater skill than that possessed by any other physician.An applicant or licensee shall also be in violation of this provision ifthe applicant or licensee has a financial interest in any organization,corporation or association which issues or conducts such advertising;
(5) Any conduct or practice which is or might be harmful or dangerousto the mental or physical health of a patient or the public; orincompetency, gross negligence or repeated negligence in the performance ofthe functions or duties of any profession licensed or regulated by thischapter. For the purposes of this subdivision, "repeated negligence" meansthe failure, on more than one occasion, to use that degree of skill andlearning ordinarily used under the same or similar circumstances by themember of the applicant's or licensee's profession;
(6) Violation of, or attempting to violate, directly or indirectly,or assisting or enabling any person to violate, any provision of thischapter, or of any lawful rule or regulation adopted pursuant to thischapter;
(7) Impersonation of any person holding a certificate of registrationor authority, permit or license or allowing any person to use his or hercertificate of registration or authority, permit, license or diploma fromany school;
(8) Revocation, suspension, restriction, modification, limitation,reprimand, warning, censure, probation or other final disciplinary actionagainst the holder of or applicant for a license or other right to practiceany profession regulated by this chapter by another state, territory,federal agency or country, whether or not voluntarily agreed to by thelicensee or applicant, including, but not limited to, the denial oflicensure, surrender of the license, allowing the license to expire orlapse, or discontinuing or limiting the practice of medicine while subjectto an investigation or while actually under investigation by any licensingauthority, medical facility, branch of the armed forces of the UnitedStates of America, insurance company, court, agency of the state or federalgovernment, or employer;
(9) A person is finally adjudged incapacitated or disabled by a courtof competent jurisdiction;
(10) Assisting or enabling any person to practice or offer topractice any profession licensed or regulated by this chapter who is notregistered and currently eligible to practice pursuant to this chapter; orknowingly performing any act which in any way aids, assists, procures,advises, or encourages any person to practice medicine who is notregistered and currently eligible to practice pursuant to this chapter. Aphysician who works in accordance with standing orders or protocols or inaccordance with the provisions of section 334.104 shall not be in violationof this subdivision;
(11) Issuance of a certificate of registration or authority, permitor license based upon a material mistake of fact;
(12) Failure to display a valid certificate or license if so requiredby this chapter or any rule promulgated pursuant to this chapter;
(13) Violation of the drug laws or rules and regulations of thisstate, any other state or the federal government;
(14) Knowingly making, or causing to be made, or aiding, or abettingin the making of, a false statement in any birth, death or othercertificate or document executed in connection with the practice of theperson's profession;
(15) Soliciting patronage in person or by agents or representatives,or by any other means or manner, under the person's own name or under thename of another person or concern, actual or pretended, in such a manner asto confuse, deceive, or mislead the public as to the need or necessity foror appropriateness of health care services for all patients, or thequalifications of an individual person or persons to diagnose, render, orperform health care services;
(16) Using, or permitting the use of, the person's name under thedesignation of "Doctor", "Dr.", "M.D.", or "D.O.", or any similardesignation with reference to the commercial exploitation of any goods,wares or merchandise;
(17) Knowingly making or causing to be made a false statement ormisrepresentation of a material fact, with intent to defraud, for paymentpursuant to the provisions of chapter 208, RSMo, or chapter 630, RSMo, orfor payment from Title XVIII or Title XIX of the federal Medicare program;
(18) Failure or refusal to properly guard against contagious,infectious or communicable diseases or the spread thereof; maintaining anunsanitary office or performing professional services under unsanitaryconditions; or failure to report the existence of an unsanitary conditionin the office of a physician or in any health care facility to the board,in writing, within thirty days after the discovery thereof;
(19) Any candidate for licensure or person licensed to practice as aphysical therapist, paying or offering to pay a referral fee or,notwithstanding section 334.010 to the contrary, practicing or offering topractice professional physical therapy independent of the prescription anddirection of a person licensed and registered as a physician and surgeonpursuant to this chapter, as a dentist pursuant to chapter 332, RSMo, as apodiatrist pursuant to chapter 330, RSMo, or any licensed and registeredphysician, dentist, or podiatrist practicing in another jurisdiction, whoselicense is in good standing;
(20) Any candidate for licensure or person licensed to practice as aphysical therapist, treating or attempting to treat ailments or otherhealth conditions of human beings other than by professional physicaltherapy and as authorized by sections 334.500 to 334.620;
(21) Any person licensed to practice as a physician or surgeon,requiring, as a condition of the physician-patient relationship, that thepatient receive prescribed drugs, devices or other professional servicesdirectly from facilities of that physician's office or other entities underthat physician's ownership or control. A physician shall provide thepatient with a prescription which may be taken to the facility selected bythe patient and a physician knowingly failing to disclose to a patient on aform approved by the advisory commission for professional physicaltherapists as established by section 334.625 which is dated and signed by apatient or guardian acknowledging that the patient or guardian has read andunderstands that the physician has a pecuniary interest in a physicaltherapy or rehabilitation service providing prescribed treatment and thatthe prescribed treatment is available on a competitive basis. Thissubdivision shall not apply to a referral by one physician to anotherphysician within a group of physicians practicing together;
(22) A pattern of personal use or consumption of any controlledsubstance unless it is prescribed, dispensed or administered by anotherphysician who is authorized by law to do so;
(23) Revocation, suspension, limitation or restriction of any kindwhatsoever of any controlled substance authority, whether agreed tovoluntarily or not;
(24) For a physician to operate, conduct, manage, or establish anabortion facility, or for a physician to perform an abortion in an abortionfacility, if such facility comes under the definition of an ambulatorysurgical center pursuant to sections 197.200 to 197.240, RSMo, and suchfacility has failed to obtain or renew a license as an ambulatory surgicalcenter;
(25) Being unable to practice as a physician and surgeon or with aspecialty with reasonable skill and safety to patients by reasons ofmedical or osteopathic incompetency, or because of illness, drunkenness,excessive use of drugs, narcotics, chemicals, or as a result of any mentalor physical condition. The following shall apply to this subdivision:
(a) In enforcing this subdivision the board shall, after a hearing bythe board, upon a finding of probable cause, require a physician to submitto a reexamination for the purpose of establishing his or her competency topractice as a physician or surgeon or with a specialty conducted inaccordance with rules adopted for this purpose by the board, includingrules to allow the examination of the pattern and practice of suchphysician's or surgeon's professional conduct, or to submit to a mental orphysical examination or combination thereof by at least three physicians,one selected by the physician compelled to take the examination, oneselected by the board, and one selected by the two physicians so selectedwho are graduates of a professional school approved and accredited asreputable by the association which has approved and accredited as reputablethe professional school from which the licentiate graduated. However, ifthe physician is a graduate of a medical school not accredited by theAmerican Medical Association or American Osteopathic Association, then eachparty shall choose any physician who is a graduate of a medical schoolaccredited by the American Medical Association or the American OsteopathicAssociation;
(b) For the purpose of this subdivision, every physician licensedpursuant to this chapter is deemed to have consented to submit to a mentalor physical examination when directed in writing by the board and furtherto have waived all objections to the admissibility of the examiningphysician's testimony or examination reports on the ground that theexamining physician's testimony or examination is privileged;
(c) In addition to ordering a physical or mental examination todetermine competency, the board may, notwithstanding any other law limitingaccess to medical or other health data, obtain medical data and healthrecords relating to a physician or applicant without the physician's orapplicant's consent;
(d) Written notice of the reexamination or the physical or mentalexamination shall be sent to the physician, by registered mail, addressedto the physician at the physician's last known address. Failure of aphysician to designate an examining physician to the board or failure tosubmit to the examination when directed shall constitute an admission ofthe allegations against the physician, in which case the board may enter afinal order without the presentation of evidence, unless the failure wasdue to circumstances beyond the physician's control. A physician whoseright to practice has been affected under this subdivision shall, atreasonable intervals, be afforded an opportunity to demonstrate that thephysician can resume the competent practice as a physician and surgeon withreasonable skill and safety to patients;
(e) In any proceeding pursuant to this subdivision neither the recordof proceedings nor the orders entered by the board shall be used against aphysician in any other proceeding. Proceedings under this subdivisionshall be conducted by the board without the filing of a complaint with theadministrative hearing commission;
(f) When the board finds any person unqualified because of any of thegrounds set forth in this subdivision, it may enter an order imposing oneor more of the disciplinary measures set forth in subsection 4 of thissection.
3. Collaborative practice arrangements, protocols and standing ordersshall be in writing and signed and dated by a physician prior to theirimplementation.
4. After the filing of such complaint before the administrativehearing commission, the proceedings shall be conducted in accordance withthe provisions of chapter 621, RSMo. Upon a finding by the administrativehearing commission that the grounds, provided in subsection 2 of thissection, for disciplinary action are met, the board may, singly or incombination, warn, censure or place the person named in the complaint onprobation on such terms and conditions as the board deems appropriate for aperiod not to exceed ten years, or may suspend the person's license,certificate or permit for a period not to exceed three years, or restrictor limit the person's license, certificate or permit for an indefiniteperiod of time, or revoke the person's license, certificate, or permit, oradminister a public or private reprimand, or deny the person's applicationfor a license, or permanently withhold issuance of a license or require theperson to submit to the care, counseling or treatment of physiciansdesignated by the board at the expense of the individual to be examined, orrequire the person to attend such continuing educational courses and passsuch examinations as the board may direct.
5. In any order of revocation, the board may provide that the personmay not apply for reinstatement of the person's license for a period oftime ranging from two to seven years following the date of the order ofrevocation. All stay orders shall toll this time period.
6. Before restoring to good standing a license, certificate or permitissued pursuant to this chapter which has been in a revoked, suspended orinactive state for any cause for more than two years, the board may requirethe applicant to attend such continuing medical education courses and passsuch examinations as the board may direct.
7. In any investigation, hearing or other proceeding to determine alicensee's or applicant's fitness to practice, any record relating to anypatient of the licensee or applicant shall be discoverable by the board andadmissible into evidence, regardless of any statutory or common lawprivilege which such licensee, applicant, record custodian or patient mightotherwise invoke. In addition, no such licensee, applicant, or recordcustodian may withhold records or testimony bearing upon a licensee's orapplicant's fitness to practice on the ground of privilege between suchlicensee, applicant or record custodian and a patient.
(RSMo 1939 § 9990, A.L. 1945 p. 1147, A.L. 1959 S.B. 50 § 10, A.L. 1963 p. 429, A.L. 1974 H.B. 1328, A.L. 1976 S.B. 472, A.L. 1979 S.B. 241, A.L. 1981 S.B. 16, A.L. 1983 S.B. 44 & 45, H.B. 713 Revision, A.L. 1984 H.B. 1351, A.L. 1986 H.B. 1029, A.L. 1987 H.B. 667, et al., A.L. 1989 H.B. 320, A.L. 1990 S.B. 737, A.L. 1993 H.B. 564, A.L. 1997 S.B. 141, A.L. 2004 S.B. 1122 merged with S.B. 1181)CROSS REFERENCE:
Administrative procedure and review, Chap. 536, RSMo
(1966) Fact that the same agency, state board of registration for the healing arts, both prosecuted and decided the case does not by itself deprive appellant of right of due process of law. Rose v. State Board of Registration for the Healing Arts (Mo.), 397 S.W.2d 570.
(1970) This section is not penal in nature, being for the protection of the public in safeguarding public health, and a revocation of a physician's license under it is not an imposition of punishment. Younge v. State Bd. of Registration for Healing Arts. (Mo.), 451 S.W.2d 346.
(1974) Determination of present moral character is a function of the administrative hearing commission. St. Bd. of Reg. for Healing Arts of Mo. v. DeVore (A.), 517 S.W.2d 480.
(1991) Acting as a non-treating expert medical witness does not constitute the practice of medicine. Physician would not be subject to discipline under statute for alleged false testimony while acting as a medical expert witness. Board of Registration for the Healing Arts v. Levine, 808 S.W.2d 440 (Mo.App.W.D.).