334.615. Clear and present danger, information to be brought to board--sanctioning authority--hearing required, when, procedure.
Clear and present danger, information to be brought toboard--sanctioning authority--hearing required, when, procedure.
334.615. 1. Upon receipt of information that the holder of anylicense as a physical therapist or physical therapist assistant issuedunder this chapter may present a clear and present danger to the publichealth and safety, the executive director shall direct that the informationbe brought to the board in the form of sworn testimony or affidavits duringa meeting of the board.
2. The board may issue an order suspending or restricting the holderof a license as a physical therapist or physical therapist assistant if itbelieves:
(1) The licensee's acts, conduct, or condition may have violatedsubsection 2 of section 334.613; and
(2) A licensee is practicing, attempting, or intending to practice inMissouri; and
(3) (a) A licensee is unable by reason of any physical or mentalcondition to receive and evaluate information or to communicate decisionsto the extent that the licensee's condition or actions significantly affectthe licensee's ability to practice; or
(b) Another state, territory, federal agency, or country has issuedan order suspending or restricting the physical therapist's or physicaltherapist assistant's right to practice his or her profession; or
(c) The licensee has engaged in repeated acts of life-threateningnegligence as defined in subsection 2 of section 334.613; and
(4) The acts, conduct, or condition of the licensee constitute aclear and present danger to the public health and safety.
3. (1) The order of suspension or restriction:
(a) Shall be based on the sworn testimony or affidavits presented tothe board;
(b) May be issued without notice and hearing to the licensee;
(c) Shall include the facts which lead the board to conclude that theacts, conduct, or condition of the licensee constitute a clear and presentdanger to the public health and safety.
(2) The board or the administrative hearing commission shall servethe licensee, in person or by certified mail, with a copy of the order ofsuspension or restriction and all sworn testimony or affidavits presentedto the board, a copy of the complaint and the request for expeditedhearing, and a notice of the place of and the date upon which thepreliminary hearing will be held.
(3) The order of restriction shall be effective upon service of thedocuments required in subdivision (2) of this subsection.
(4) The order of suspension shall become effective upon the entry ofthe preliminary order of the administrative hearing commission.
(5) The licensee may seek a stay order from the circuit court of ColeCounty from the preliminary order of suspension, pending the issuance of afinal order by the administrative hearing commission.
4. The board shall file a complaint in the administrative hearingcommission with a request for expedited preliminary hearing and shallcertify the order of suspension or restriction and all sworn testimony oraffidavits presented to the board. Immediately upon receipt of a complaintfiled under this section, the administrative hearing commission shall setthe place and date of the expedited preliminary hearing which shall beconducted as soon as possible, but not later than five days after the dateof service upon the licensee. The administrative hearing commission shallgrant a licensee's request for a continuance of the preliminary hearing;however, the board's order shall remain in full force and effect until thepreliminary hearing, which shall be held not later than forty-five daysafter service of the documents required in subdivision (2) of subsection 3of this section.
5. At the preliminary hearing, the administrative hearing commissionshall receive into evidence all information certified by the board andshall only hear evidence on the issue of whether the board's order ofsuspension or restriction should be terminated or modified. Within onehour after the preliminary hearing, the administrative hearing commissionshall issue its oral or written preliminary order, with or without findingsof fact and conclusions of law, that adopts, terminates, or modifies theboard's order. The administrative hearing commission shall reduce towriting any oral preliminary order within five business days, but theeffective date of the order shall be the date orally issued.
6. The preliminary order of the administrative hearing commissionshall become a final order and shall remain in effect for three yearsunless either party files a request for a full hearing on the merits of thecomplaint filed by the board within thirty days from the date of theissuance of the preliminary order of the administrative hearing commission.
7. Upon receipt of a request for full hearing, the administrativehearing commission shall set a date for hearing and notify the parties inwriting of the time and place of the hearing. If a request for fullhearing is timely filed, the preliminary order of the administrativehearing commission shall remain in effect until the administrative hearingcommission enters an order terminating, modifying, or dismissing itspreliminary order or until the board issues an order of disciplinefollowing its consideration of the decision of the administrative hearingcommission under section 621.110, RSMo, and subsection 3 of section334.100.
8. In cases where the board initiates summary suspension orrestriction proceedings against a physical therapist or physical therapistassistant licensed under this chapter, and such petition is subsequentlydenied by the administrative hearing commission, in addition to any awardmade under sections 536.085 and 536.087, RSMo, the board, but notindividual members of the board, shall pay actual damages incurred duringany period of suspension or restriction.
9. Notwithstanding the provisions of this chapter or chapter 610,RSMo, or chapter 621, RSMo, to the contrary, the proceedings under thissection shall be closed and no order shall be made public until it isfinal, for purposes of appeal.
10. The burden of proving the elements listed in subsection 2 of thissection shall be upon the state board of registration for the healing arts.
(L. 2008 S.B. 788)