FIRST REGULAR SESSION
HOUSE BILL NO. 695
91ST GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES SHOEMYER, PHILLIPS (Co-sponsors) AND WIGGINS.
Read 1st time February 7, 2001, and 1000 copies ordered printed.
TED WEDEL, Chief Clerk
AN ACT
To repeal sections 332.051, 332.181, 332.261, 332.321 and 332.341, RSMo 2000, relating to the practice of dentistry and dental hygiene, and to enact in lieu thereof four new sections relating to the same subject.
Section A. Sections 332.051, 332.181, 332.261, 332.321 and 332.341, RSMo 2000, are repealed and four new sections enacted in lieu thereof, to be known as sections 332.051, 332.181, 332.261 and 332.321, to read as follows:
332.051. 1. The board shall establish and maintain an office at Jefferson City, Missouri, where its records and files shall be kept.
2. Investigators employed by the board shall, among other duties, have the power in the name of the board to investigate alleged violations of this chapter including the right to inspect, on order of the board, dental offices, [including records,] dental laboratories, dental equipment and instruments [with respect to violations of the provisions of this chapter], and to inspect and copy all records, including patient records.
3. In any investigation, hearing or other proceeding to determine a licensee's or applicant's fitness to practice, any record relating to any patient of the licensee or applicant shall be discoverable by the board and admissible into evidence, regardless of any statutory or common law privilege that such licensee, applicant, record custodian or patient might otherwise invoke. In addition, no such licensee, applicant, or record custodian may withhold records or testimony bearing upon a licensee's or applicant's fitness to practice on the ground of privilege between such licensee, applicant or record custodian and a patient.
332.181. 1. [After a person has received a certificate of registration qualifying him to practice dentistry in Missouri, he may within one year from the date of his certificate, apply, on forms furnished to the applicant for, and upon payment of a dentist's license fee shall receive, a license to practice dentistry in Missouri] No person shall engage in the practice of dentistry in Missouri without first obtaining a license pursuant to this chapter.
2. [The certificate of registration of a dentist issued to any person who fails to apply for a license as herein provided within one year after the date of his certificate of registration shall be void] Any person desiring to obtain a license to practice dentistry in Missouri shall make application to the board on a form prescribed by the board pursuant to section 332.141. An application for licensure shall be active for one year after the date it is received by the board. The application is void if not completed within one year of its receipt by the board.
3. [Each person who holds a certificate of registration] Once licensed to practice dentistry in Missouri, a licensee shall renew his or her license [to practice dentistry in Missouri] on or before the license renewal date and shall display his or her license for each current licensing period in the office in which he or she practices or offers to practice dentistry.
4. All licenses issued or renewed on or after December 1, 2002, shall be valid for two years. The board shall not renew [any certificate of registration] the license of any dentist unless the licensee [shall provide] provides satisfactory evidence that he or she has completed [seventy-five hours] the required number of continuing education [within a three-year period] hours within the time period prescribed by rule by the board. The board may extend the time requirements for completion of continuing education for up to six months for reasons related to health, military service, foreign residency or other good cause. All requests for extensions of time shall be made in writing and submitted to the board before the license renewal date. The board may waive the requirements for continuing education for retired or disabled dentists or for other good cause.
5. Any [registered and] licensed dentist who fails to renew his or her license on or before the renewal date may apply to the board for [a] renewal of his or her license within [five] four years subsequent to the date [his] of license [expired] expiration, provided that any such applicant shall pay a reinstatement fee for the license.
6. The [certificate of registration] license of any dentist who fails to renew [his license] within [five] four years of the time his or her license [has] expired [shall be] is void. [He] The dentist may reapply for a [new certificate of registration], license provided that, unless [he applies] application is made under section 332.211, he or she shall pay the same fees and be examined in the same manner as an original applicant for [a certificate of registration] licensure as a dentist. A [registered and] currently licensed dentist in Missouri may apply to the board to be placed on an inactive list of dentists, and during the time his or her name remains on the inactive list, he or she shall not practice dentistry. If a dentist wishes to be removed from the inactive list, unless he or she applies under section 332.211, he or she shall apply for a current license and pay the license fees for the years between the date of the entry of his or her name on the inactive list and the date of issuance of his or her current license. [And] In addition, [if he] any dentist who has been on the inactive list for more than [three] four years[,] shall be examined in the same manner as an original applicant for [a certificate of registration] licensure as a dentist.
7. A [registered and] currently licensed dentist in Missouri who does not maintain a practice in this state or does not reside in this state may apply to the board to be placed on an out-of-state licensee list of dentists. Any dentist applying to be so [registered and] licensed shall accompany his or her application with a fee not greater than the licensure fee for a licensee who maintains a practice in this state or who resides in this state. The required fee shall be established by the board, by rule, as with other licensing fees.
332.261. 1. [After a person has received a certificate of registration qualifying him to practice as a dental hygienist in Missouri, he may within one year from the date of his certificate apply for and shall receive a license to practice as a dental hygienist in Missouri. Application forms shall be furnished to the applicant, and the application shall be accompanied by the dental hygienist license fee.] No person shall engage in the practice of dental hygiene without first obtaining a license pursuant to this chapter.
2. [The certificate of registration as a dental hygienist issued to any person who fails to apply for a license as herein provided within one year after the date of his certificate of registration shall be void.] Any person desiring to obtain a license to practice dentistry in Missouri shall make application to the board on a form prescribed by the board pursuant to section 332.141. An application for licensure shall be active for one year after the date it is received by the board. The application is void if not completed within one year of its receipt by the board.
3. [Each person who holds a certificate of registration] Once licensed to practice as a dental hygienist in Missouri, a licensee shall renew his or her license to practice as a dental hygienist on or before the renewal date and shall display his or her license for each current licensing period in the office in which he or she practices or offers to practice as a dental hygienist.
4. All licenses issued or renewed on or after December 1, 2002, shall be valid for two years. The board shall not renew [any certificate of registration] the license of any hygienist unless the licensee [shall provide] provides satisfactory evidence that he or she has completed [forty-five hours] the required number of continuing education [within a three-year period] hours within the time period prescribed by rule by the board. The board may extend the time requirements for completion of continuing education for up to six months for reasons related to health, military service, foreign residency or other good cause. All requests for extensions of time shall be made in writing and submitted to the board before the license renewal date. The board may waive the requirements for continuing education for retired or disabled hygienists or for other good cause.
5. Any [registered and] licensed dental hygienist who fails to renew his or her license on or before the renewal date may apply to the board for [a] renewal of his or her license within [five] four years [after] subsequent to the date [his] of license [expired] expiration, [but he] but any such applicant shall pay a reinstatement fee for the [new] license.
6. The [certificate of registration] license of any dental hygienist who fails to renew [his license] within [five] four years of the time that his or her license [shall have] expired [shall be] is void. [He] The dental hygienist may apply for a new [certificate of registration] license, provided that, unless [he applies] application is made under section 332.281, he or she shall pay the same fees and be examined in the same manner as an original applicant for [a certificate of registration] licensure as a dental hygienist. A currently licensed dental hygienist in Missouri may apply to the board to be placed on an inactive list of dental hygienists, and during the time his or her name remains on the inactive list, he or she shall not practice as a dental hygienist. If a dental hygienist wishes to be removed from the inactive list, unless he or she applies pursuant to section 332.281, he or she shall apply for a current license and pay the license fees for the years between the date of the entry of his or her name on the inactive list and the date of issuance of his or her current license. In addition, any dental hygienist who has been on the inactive list for more than four years shall be examined in the same manner as an original applicant for licensure as a dental hygienist.
7. [Any] A currently licensed dental hygienist [holding a certificate of registration in this state] in Missouri who does not practice in this state or who does not reside in this state may apply to the board to be placed on an out-of-state registration list of dental hygienists. Any dental hygienist applying to be so [registered] licensed shall accompany his or her application with a fee not greater than the license fee for a licensee who practices in this state or resides in this state. The required fee shall be established by the board, by rule, as with other licensing fees.
332.321. 1. The board may refuse to issue [any certificate of registration or authority, permit or license, or refuse to renew any such certificate of registration or authority,] or renew any permit or license[,] required pursuant to this chapter for one or any combination of causes stated in subsection 2 of this section or the board may, as a condition to issuing or renewing any such [certificate of registration or authority,] permit or license, require a person to submit himself or herself for identification, intervention, treatment or rehabilitation by the well-being committee as provided in section 332.327. 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, RSMo.
2. The board may cause a complaint to be filed with the administrative hearing commission as provided by chapter 621, RSMo, against any holder of any [certificate of registration or authority,] permit or license required by this chapter 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 of any controlled substance, as defined in chapter 195, RSMo, 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 this chapter;
(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 this chapter, for any offense an essential element of which is fraud, dishonesty or an act of violence, or 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 this chapter or in obtaining permission to take any examination given or required pursuant to this chapter;
(4) Obtaining or attempting to obtain any fee, charge, tuition or other compensation by fraud, deception or misrepresentation; or increasing charges when a patient utilizes a third-party payment program; or for repeated irregularities in billing a third party for services rendered to a patient. For the purposes of this subdivision, irregularities in billing shall include:
(a) Reporting charges for the purpose of obtaining a total payment in excess of that usually received by the dentist for the services rendered;
(b) Reporting incorrect treatment dates for the purpose of obtaining payment;
(c) Reporting charges for services not rendered;
(d) Incorrectly reporting services rendered for the purpose of obtaining payment [which is] greater than that to which the person is entitled;
(e) Abrogating the co-payment or deductible provisions of a third-party payment contract. Provided, however, that this paragraph shall not prohibit a discount, credit or reduction of charges provided under an agreement between the [holder of a license] licensee and an insurance company, health service corporation or health maintenance organization licensed pursuant to the laws of this state; or governmental third-party payment program; or self-insurance program organized, managed or funded by a business entity for its own employees or labor organization for its members;
(5) Incompetency, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of, or relating to one's ability to perform, the functions or duties of any profession licensed or regulated by this chapter;
(6) Violation of, or assisting or enabling any person to violate, any provision of this chapter, or any lawful rule or regulation adopted pursuant to this chapter;
(7) 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;
(8) Disciplinary action against the holder of a license or other right to practice any profession regulated by this chapter [granted] imposed by another state, province, territory, federal agency or country upon grounds for which [revocation or suspension] discipline is authorized in this state;
(9) A person is finally adjudicated incapacitated or disabled by a court of competent jurisdiction;
(10) Assisting or enabling any person to practice or offer to practice, by lack of supervision or in any other manner, any profession licensed or regulated by this chapter who is not registered and currently eligible to practice pursuant to this chapter;
(11) Issuance of a [certificate of registration or authority,] permit or license based upon a material mistake of fact;
(12) Failure to display a valid certificate [or], license or permit if so required by this chapter or by any rule promulgated hereunder;
(13) Violation of any professional trust or confidence;
(14) Use of any advertisement or solicitation [which] that is false, misleading or deceptive to the general public or persons to whom the advertisement or solicitation is primarily directed. False, misleading or deceptive advertisements or solicitations shall include, but not be limited to:
(a) Promises of cure, relief from pain or other physical or mental condition, or improved physical or mental health;
(b) Any misleading or deceptive statement offering or promising a free service. Nothing herein shall be construed to make it unlawful to offer a service for no charge if the offer is announced as part of a full disclosure of routine fees including consultation fees;
(c) Any misleading or deceptive claims of patient cure, relief or improved condition; superiority in service, treatment or materials; new or improved service, treatment or material; or reduced costs or greater savings. Nothing herein shall be construed to make it unlawful to use any such claim if it is readily verifiable by existing documentation, data or other substantial evidence. Any claim [which] that exceeds or exaggerates the scope of its supporting documentation, data or evidence is misleading or deceptive;
(d) Any announced fee for a specified service where that fee does not include the charges for necessary related or incidental services, or where the actual fee charged for that specified service may exceed the announced fee, but it shall not be unlawful to announce only the maximum fee [which] that can be charged for the specified service, including all related or incidental services, modified by the term "up to" if desired;
(e) Any announcement in any form including the term "specialist" or the phrase "limited to the specialty of" unless each person named in conjunction with the term or phrase, or responsible for the announcement, holds a valid Missouri certificate and license evidencing that the person is a specialist in that area;
(f) Any announcement containing any of the terms denoting recognized specialties, or other descriptive terms carrying the same meaning, unless the announcement clearly designates by list each dentist not licensed as a specialist in Missouri who is sponsoring or named in the announcement, or employed by the entity sponsoring the announcement, after the following clearly legible or audible statement: "Notice: the following dentist(s) in this practice is (are) not licensed in Missouri as specialists in the advertised dental specialty(s) of ...........";
(g) Any announcement containing any terms denoting or implying specialty areas [which] that are not recognized by the American Dental Association;
(15) Violation of the drug laws or rules and regulations of this state, any other state or the federal government;
(16) Failure or refusal to properly guard against contagious, infectious or communicable diseases or the spread thereof;
(17) Failing to maintain his or her office or offices, laboratory, equipment and instruments in a safe and sanitary condition;
(18) Accepting [or], tendering or paying "rebates" to or "splitting fees" with any other person; provided, however, that nothing herein shall be so construed as to make it unlawful for a dentist practicing in a partnership or as a corporation organized pursuant to the provisions of chapter 356, RSMo, [from distributing] to distribute profits in accordance with his or her stated agreement;
(19) Administering, or causing or permitting to be administered, nitrous oxide gas in any amount to himself or herself[;], or to another unless [this administration is done] as an adjunctive measure to patient management;
(20) Being unable to practice as a dentist, specialist or hygienist with reasonable skill and safety to patients by reasons of professional incompetency, or because of illness, drunkenness, excessive use of drugs, narcotics, chemicals, or as a result of any mental or physical condition. In enforcing this subdivision the board shall, after a hearing before the board, upon a finding of probable cause, require the dentist or specialist or hygienist to submit to a reexamination for the purpose of establishing his or her competency to practice as a dentist, specialist or hygienist, which reexamination shall be conducted in accordance with rules adopted for this purpose by the board, including rules to allow the examination of the dentist's, specialist's or hygienist's professional competence by at least three dentists or fellow specialists, or to submit to a mental or physical examination or combination thereof by at least three physicians. One examiner shall be selected by the dentist, specialist or hygienist compelled to take examination, one selected by the board, and one shall be selected by the two examiners so selected. Notice of the physical or mental examination shall be given by personal service or registered mail. Failure of the dentist, specialist or hygienist to submit to the examination when directed shall constitute an admission of the allegations against him or her, unless the failure was due to circumstances beyond his or her control. A dentist, specialist or hygienist whose right to practice has been affected pursuant to this subdivision shall, at reasonable intervals, be afforded an opportunity to demonstrate that he or she can resume competent practice with reasonable skill and safety to patients.
(a) In any proceeding pursuant to this subdivision, neither the record of proceedings nor the orders entered by the board shall be used against a dentist, specialist or hygienist in any other proceeding. Proceedings pursuant to this subdivision shall be conducted by the board without the filing of a complaint with the administrative hearing commission;
(b) When the board finds any person unqualified because of any of the grounds set forth in this subdivision, it may enter an order imposing one or more of the following: denying his or her application for a license; permanently withholding issuance of a license; administering a public or private reprimand; placing on probation, suspending or limiting or restricting his or her license to practice as a dentist, specialist or hygienist for a period of not more than five years; revoking his or her license to practice as a dentist, specialist or hygienist; requiring him or her to submit to the care, counseling or treatment of physicians designated by the dentist, specialist or hygienist compelled to be treated; or requiring such person to submit to identification, intervention, treatment or rehabilitation by the well-being committee as provided in section 332.327. For the purpose of this subdivision, "license" includes the certificate of registration, or license, or both, issued by the board.
3. After the filing of such complaint, the proceedings shall be conducted in accordance with the provisions of chapter 621, RSMo. Upon a finding by the administrative hearing commission that the grounds, provided in subsection 2, for disciplinary action are met, the board may, singly or in combination:
(1) Censure or place the person or firm 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
(2) [May] Suspend the license, certificate or permit for a period not to exceed three years; or
(3) Revoke the license, certificate, or permit. In any order of revocation, the board may provide that the person may not apply for licensure for a period of time ranging from two to seven years following the date of the order of revocation; or
(4) Cause the person or firm named in the complaint to make restitution to any patient, or any insurer or third-party payer who shall have paid in whole or in part a claim or payment which they should be reimbursed [for], where restitution would be an appropriate remedy, including the reasonable cost of follow-up care to correct or complete a procedure performed or one [which] that was to be performed by the person or firm named in the complaint; or
(5) Request the attorney general to bring an action in the circuit court of competent jurisdiction to recover a civil penalty on behalf of the state in an amount to be assessed by the court.
4. If the board concludes that a dentist or dental hygienist has committed an act or is engaging in a course of conduct that would be grounds for disciplinary action and that constitutes a clear and present danger to public health and safety, the board may file a complaint before the administrative hearing commission which requests an expedited hearing, which specifies the activities that endanger the public health and safety and which specifies the nature of the proposed restriction or suspension of the dentist's or dental hygienist's license. Within fifteen days after service of the complaint on the dentist or dental hygienist, the administrative hearing commission shall conduct a preliminary hearing to determine whether the alleged activities of the dentist or dental hygienist appear to constitute a clear and present danger to the public health and safety which justify the immediate restriction or suspension of the dentist's or dental hygienist's license. The burden of proving that a dentist or dental hygienist is a clear and present danger to the public health and safety is on the Missouri dental board. The administrative hearing commission shall issue its decision immediately after the hearing and shall either grant the board the authority to suspend or restrict the license or dismiss the action.
5. If the administrative hearing commission grants temporary authority to the board to restrict or suspend the dentist's or dental hygienist's license, such temporary authority shall become final authority if the dentist or dental hygienist fails to request a full hearing within thirty days of the preliminary hearing. The administrative hearing commission shall, if requested by the dentist or dental hygienist named in the complaint, set a date to hold a full hearing pursuant to chapter 621, RSMo, regarding the activities alleged in the initial complaint filed by the board.
6. If the administrative hearing commission dismisses the action filed by the board pursuant to subsection 4 of this section, such dismissal shall not bar the board from initiating a subsequent action on the same grounds.
7. Notwithstanding any other provisions of section 332.071 or of this section, a [duly registered and] currently licensed dentist in Missouri may enter into an agreement with individuals and organizations to provide dental health care, provided such agreement does not permit or compel practices [in violation of this section or violate any other] that violate any provision of this chapter.
[5.] 8. At all proceedings for the enforcement of these or any other provisions of this chapter the board shall, as it deems necessary, select, in its discretion, either the attorney general or one of the attorney general's assistants designated by the attorney general or other legal counsel to appear and represent the board at each stage of such proceeding or trial until its conclusion.
[6.] 9. If at any time when any [disciplinary sanctions have] discipline has been imposed pursuant to this section or pursuant to any provision of this chapter, the licensee removes himself or herself from the state of Missouri, ceases to be currently licensed pursuant to the provisions of this chapter, or fails to keep the Missouri dental board advised of his or her current place of business and residence, the time of his or her absence, or unlicensed status, or unknown whereabouts shall not be deemed or taken as any part of the time of discipline so imposed.[332.341. 1. Any person or other entity who believes that a registered and licensed dentist or a registered and licensed dental hygienist has so acted or failed to act that his certificate of registration or license or both should, under the provisions of this chapter, be suspended or revoked, or who believes that any applicant for a certificate of registration or license to practice dentistry or to practice as a dental hygienist is not entitled thereto under the provisions of this chapter, may file a complaint with the secretary-treasurer of the board.
2. If the complaint so filed does not contain statements of fact which if true would authorize, under the provisions of this chapter, suspension or revocation of the accused's certificate or license, or does not contain statements of fact which if true would authorize, under the provisions of this chapter, the refusal to issue a certificate or license to an applicant, the board shall either forthwith dismiss the charge or the charges or, within its discretion, cause an investigation to be made of the charges contained in the complaint; after which investigation the board shall either dismiss the charge or charges or proceed against the accused by written complaint as hereinafter provided.
3. If the complaint so filed contains statements of fact which if true would authorize, under the provisions of this chapter, the revocation or suspension of an accused's certificate or license, or both, the board shall cause an investigation to be made of the charge or charges contained in the complaint and unless the investigation discloses the falsity of the facts upon which the charge or charges in the complaint are based, the board shall file with and in the administrative hearing commission a written complaint against the accused setting forth the cause or causes for which his certificate of registration or license or both should be suspended or revoked. Thereafter the board shall be governed by and shall proceed in accordance with the provisions of chapter 621, RSMo.
4. If the charges contained in the complaint filed with the board (after the investigation as aforesaid), if true, would constitute a cause or causes for which, under the provisions of this chapter, an accused's license should not be issued or renewed or a cause or causes for which under the provisions of this chapter a certificate of registration should not be issued, the board shall cause an investigation to be made of the charge or charges and unless the investigation discloses the falsity of the facts upon which the charge or charges contained in the complaint are based, the board shall refuse to permit an applicant to be examined upon his qualifications for licensure or shall refuse to issue a certificate or license or to renew a license, as the case may require.
5. The provisions of this section shall not be so construed as to prevent the board on its own initiative from instituting and conducting investigations and based thereon to make written complaints in and to the hearing commission.
6. If for any reason the provisions of chapter 621, RSMo, become inapplicable to the board, then, and in that event, the
board shall proceed to charge, adjudicate and otherwise act in accordance with the provisions of chapter 536, RSMo.]
Missouri House of
Representatives