FIRST REGULAR SESSION
HOUSE BILL NO. 815
94TH GENERAL ASSEMBLY
INTRODUCED BY REPRESENTATIVES MEADOWS (Sponsor), McCLANAHAN, FRAME, ROORDA, YAEGER, KOMO, LIESE, SPRENG, ZWEIFEL, CASEY, OXFORD, CORCORAN, BROWN (50), LOW (39), FALLERT, SCHOEMEHL, SWINGER, KRATKY, YOUNG, GEORGE, LeVOTA, HAYWOOD, PAGE, WALSH, HOLSMAN, LAMPE, LOWE (44), BOWMAN, HODGES, GRILL AND DARROUGH (Co-sponsors).
Read 1st time February 8, 2007 and copies ordered printed.
D. ADAM CRUMBLISS, Chief Clerk
To repeal sections 335.016, 335.066, 335.068, 335.076, 335.097, 383.130, and 383.133, RSMo, and to enact in lieu thereof seven new sections relating to professional licensing of nurses.
Be it enacted by the General Assembly of the state of Missouri, as follows:
Section A. Sections 335.016, 335.066, 335.068, 335.076, 335.097, 383.130, and 383.133, RSMo, are repealed and seven new sections enacted in lieu thereof, to be known as sections 335.016, 335.066, 335.068, 335.076, 335.097, 383.130, and 383.133, to read as follows:
335.016. As used in this chapter, unless the context clearly requires otherwise, the following words and terms mean:
(1) "Accredited", the official authorization or status granted by an agency for a program through a voluntary process;
(2) "Advanced practice nurse", a nurse who has had education beyond the basic nursing education and is certified by a nationally recognized professional organization as having a nursing specialty, or who meets criteria for advanced practice nurses established by the board of nursing. The board of nursing may promulgate rules specifying which professional nursing organization certifications are to be recognized as advanced practice nurses, and may set standards for education, training and experience required for those without such specialty certification to become advanced practice nurses. Advanced practice nurses and only such individuals may use the title "Advanced Practice Registered Nurse" and the abbreviation "APRN";
(3) "Approval", official recognition of nursing education programs which meet standards established by the board of nursing;
(4) "Board" or "state board", the state board of nursing;
(5) "Executive director", a qualified individual employed by the board as executive secretary or otherwise to administer the provisions of this chapter under the board's direction. Such person employed as executive director shall not be a member of the board;
(6) "Inactive nurse", as defined by rule pursuant to section 335.061;
(7) "Lapsed license status", as defined by rule under section 335.061;
(8) [A] "Licensed practical nurse" or "practical nurse", a person licensed pursuant to the provisions of this chapter to engage in the practice of practical nursing;
[(8)] (9) "Licensure", the issuing of a license to practice professional or practical nursing to candidates who have met the specified requirements and the recording of the names of those persons as holders of a license to practice professional or practical nursing;
[(9)] (10) "Practical nursing", the performance for compensation of selected acts for the promotion of health and in the care of persons who are ill, injured, or experiencing alterations in normal health processes. Such performance requires substantial specialized skill, judgment and knowledge. All such nursing care shall be given under the direction of a person licensed by a state regulatory board to prescribe medications and treatments or under the direction of a registered professional nurse. For the purposes of this chapter, the term "direction" shall mean guidance or supervision provided by a person licensed by a state regulatory board to prescribe medications and treatments or a registered professional nurse, including, but not limited to, oral, written, or otherwise communicated orders or directives for patient care. When practical nursing care is delivered pursuant to the direction of a person licensed by a state regulatory board to prescribe medications and treatments or under the direction of a registered professional nurse, such care may be delivered by a licensed practical nurse without direct physical oversight;
[(10)] (11) "Professional nursing", the performance for compensation of any act which requires substantial specialized education, judgment and skill based on knowledge and application of principles derived from the biological, physical, social and nursing sciences, including, but not limited to:
(a) Responsibility for the teaching of health care and the prevention of illness to the patient and his or her family;
(b) Assessment, nursing diagnosis, nursing care, and counsel of persons who are ill, injured or experiencing alterations in normal health processes;
(c) The administration of medications and treatments as prescribed by a person licensed by a state regulatory board to prescribe medications and treatments;
(d) The coordination and assistance in the delivery of a plan of health care with all members of a health team;
(e) The teaching and supervision of other persons in the performance of any of the foregoing;
[(11)] (12) A "registered professional nurse" or "registered nurse", a person licensed pursuant to the provisions of this chapter to engage in the practice of professional nursing;
(13) "Retired license status", any person licensed in this state under this chapter who retires from such practice. Such person shall file with the board an affidavit, on a form to be furnished by the board, which states the date on which the licensee retired from such practice, an intent to retire from the practice for at least two years, and such other facts as tend to verify the retirement as the board may deem necessary; but if the licensee thereafter reengages in the practice, the licensee shall renew his or her license with the board as provided by this chapter and by rule and regulation.
335.066. 1. The board may refuse to issue any certificate of registration or authority, permit or license required pursuant to sections 335.011 to 335.096 for one or any combination of causes stated in subsection 2 of this section. 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 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, 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 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, misconduct, gross negligence, fraud, misrepresentation or dishonesty in the performance of the functions or duties of any profession licensed or regulated by sections 335.011 to 335.096;
(6) 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;
(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 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;
(9) A person is finally adjudged insane or incompetent by a court of competent jurisdiction;
(10) 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;
(11) Issuance of a certificate of registration or authority, permit or license based upon a material mistake of fact;
(12) Violation of any professional trust or confidence;
(13) 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;
(14) Violation of the drug laws or rules and regulations of this state, any other state or the federal government;
(15) 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.
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 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, RSMo, 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.
[5.] 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.
[6.] 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. If the board concludes that a nurse has committed an act or is engaging in a course of conduct which would be grounds for disciplinary action which constitutes a clear and present danger to the public health and safety, the board may file a complaint before the administrative hearing commission requesting an expedited hearing and specifying the activities which give rise to the danger and the nature of the proposed restriction or suspension of the nurse's license. Within fifteen days after service of the complaint on the nurse, the administrative hearing commission shall conduct a preliminary hearing to determine whether the alleged activities of the nurse appear to constitute a clear and present danger to the public health and safety which justify that the nurse's license be immediately restricted or suspended. The burden of proving that a nurse is a clear and present danger to the public health and safety shall be upon the state board of nursing. The administrative hearing commission shall issue its decision immediately after the hearing and shall either grant to the board the authority to suspend or restrict the license or dismiss the action.
9. 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, RSMo, regarding the activities alleged in the initial complaint filed by the board.
10. 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.
335.068. 1. [If the board finds merit to a complaint by an individual incarcerated or under the care and control of the department of corrections and takes further investigative action, no documentation may appear on file or disciplinary action may be taken in regards to the licensee's license unless the provisions of subsection 2 of section 335.066 have been violated. Any case file documentation that does not result in the board filing an action pursuant to subsection 2 of section 335.066 shall be destroyed within three months after the final case disposition by the board. No notification to any other licensing board in another state or any national registry regarding any investigative action shall be made unless the provisions of subsection 2 of section 335.066 have been violated.
2. Upon written request of the nurse subject to a complaint, prior to August 28, 1999, by an individual incarcerated or under the care and control of the department of corrections that did not result in the board filing an action pursuant to subsection 2 of section 335.066, the board and the division of professional registration shall in a timely fashion:
(1) Destroy all documentation regarding the complaint;] If the board determines that a complaint does not constitute a violation of the nursing practice act or that the complaint is unsubstantiated, then that complaint, and all documentation related to it, shall be deemed a sealed record. If the administrative hearing commission or a court of competent jurisdiction makes a finding that an action brought by the board does not constitute sufficient grounds to discipline the license of a licensee, that complaint, and all documentation related to it, shall be deemed a sealed record.
2. For purposes of this section, a "sealed record" shall mean that the complaint to which it refers shall be deemed to never have occurred. The licensee may properly reply that no record exists with respect to such complaint upon any inquiry in the matter. A sealed record shall not be disclosed or reported to any other state agency, other board of nursing, or any other organization without express, written permission of the licensee.
3. Upon determination by the board that a complaint is not a violation of the nursing practice act or that the complaint is unsubstantiated, or upon the conclusion of litigation resulting in a finding of insufficient grounds to impose discipline upon a licensee's license, the board and the division of professional registration shall, in a timely fashion:
[(2)] (1) Notify any other licensing board in another state or any national registry regarding the board's action if they have been previously notified of the complaint; and
[(3)] (2) Send a letter to the licensee that clearly states that the board found the complaint to be unsubstantiated[ , that the board has taken the requested action,] or that litigation resulted in a finding that there are insufficient grounds to discipline the licensee's license, that the board has sealed all records concerning the complaint, and notify the licensee of the provisions of subsection  4 of this section.
[3.] 4. Any person who has been the subject of an unsubstantiated complaint as provided in subsection 1 [or 2] of this section shall not be required to disclose the existence of such complaint in subsequent applications or representations relating to their nursing professions.
5. Nothing contained in this section shall prevent the board of nursing from maintaining such records as to ensure that all complaints received by the board are properly investigated and reviewed by the board and the results of that investigation are reported to the appropriate parties.
335.076. 1. Any person who holds a license to practice professional nursing in this state may use the title "Registered Professional Nurse" and the abbreviation "R.N.". No other person [may] shall use the title "Registered Professional Nurse" or the abbreviation "R.N.". No other person shall assume any title or use any abbreviation or any other words, letters, signs, or devices to indicate that the person using the same is a registered professional nurse.
2. Any person who holds a license to practice practical nursing in this state may use the title "Licensed Practical Nurse" and the abbreviation "L.P.N.". No other person [may] shall use the title "Licensed Practical Nurse" or the abbreviation "L.P.N.". No other person shall assume any title or use any abbreviation or any other words, letters, signs, or devices to indicate that the person using the same is a licensed practical nurse.
3. Any person who holds a license or recognition to practice advanced practice nursing in this state may use the title "Advanced Practice Registered Nurse", and the abbreviation "APRN", and any other title designations appearing on his or her license. No other person shall use the title "Advanced Practice Registered Nurse" or the abbreviation "APRN". No other person shall assume any title or use any abbreviation or any other words, letters, signs, or devices to indicate that the person using the same is an advanced practice registered nurse.
4. No person shall practice or offer to practice professional nursing [or] , practical nursing, or advanced practice nursing in this state [for compensation] or use any title, sign, abbreviation, card, or device to indicate that such person is a practicing professional nurse [or] , practical nurse, or advanced practice nurse unless he or she has been duly licensed under the provisions of [sections 335.011 to 335.096] this chapter.
5. In the interest of public safety and consumer awareness, it is unlawful for any person to use the title "nurse" in reference to himself or herself in any capacity, except individuals who are or have been licensed as a registered nurse, licensed practical nurse, or advanced practice registered nurse under this chapter.
335.097. 1. The president or secretary of the board of nursing may administer oaths, issue subpoenas duces tecum and require production of documents and records. Subpoenas duces tecum shall be served by a person authorized to serve subpoenas of courts of record. In lieu of requiring attendance of a person to produce original documents in response to a subpoena duces tecum, the board may require sworn copies of such documents to be filed with it or delivered to its designated representative.
2. The board may enforce its subpoenas duces tecum by applying to a circuit court of Cole County, the county of the investigation, hearing or proceeding, or any county where the person resides or may be found, for an order upon any person who shall fail to comply with a subpoena duces tecum to show cause why such subpoena should not be enforced, which such order and a copy of the application therefor shall be served upon the person in the same manner as a summons in a civil action, and if the circuit court shall, after a hearing, determine that the subpoena duces tecum should be sustained and enforced, such court shall proceed to enforce the subpoena duces tecum in the same manner as though the subpoena duces tecum had been issued in a civil case in the circuit court.
3. Reports made to the board under the mandated reporting requirements as defined in chapter 383, RSMo, shall not be deemed a violation of the federal health insurance portability and accountability act (HIPAA) and the privacy rules located in the act because the Missouri state board of nursing qualifies as a health oversight agency as defined in the HIPAA privacy rules.
383.130. As used in sections 383.130[,] and 383.133 [and 383.500], the following terms shall mean:
(1) "Disciplinary action", any final action taken by the board of trustees or similarly empowered officials of a hospital or ambulatory surgical center, or owner or operator of a temporary nursing staffing agency, to reprimand, discipline or restrict the practice of a health care professional. [If the health care professional is a physician or surgeon,] Only such reprimands, discipline, or restrictions in response to activities which are also grounds for disciplinary actions [pursuant to section 334.100, RSMo,] according to the professional licensing law for that health care professional shall be considered disciplinary actions for the purposes of this definition[. If the health care professional is a dentist, only such reprimands, discipline, or restrictions in response to activities which are also grounds for disciplinary actions pursuant to section 332.321, RSMo, shall be considered disciplinary actions for the purposes of this definition];
(2) "Health care professional", a physician or surgeon licensed under the provisions of chapter 334, RSMo, a dentist licensed under the provisions of chapter 332, RSMo, or a podiatrist licensed under the provisions of chapter 330, RSMo, or a pharmacist licensed under the provisions of chapter 338, RSMo, a psychologist licensed under the provisions of chapter 337, RSMo, or a nurse licensed under the provisions of chapter 335, RSMo, while acting within their scope of practice;
(3) "Hospital", a place devoted primarily to the maintenance and operation of facilities for the diagnosis, treatment or care for not less than twenty-four hours in any week of three or more nonrelated individuals suffering from illness, disease, injury, deformity or other abnormal physical conditions; or a place devoted primarily to provide for not less than twenty-four hours in any week medical or nursing care for three or more nonrelated individuals. The term "hospital" does not include convalescent, nursing, shelter or boarding homes as defined in chapter 198, RSMo;
(4) "Licensing authority", the appropriate board or authority which is responsible for the licensing or regulation of the health care professional;
(5) "Temporary nursing staffing agency", any person, firm, partnership, or corporation doing business within the state that supplies, on a temporary basis, registered nurses, licensed practical nurses to a hospital, nursing home, or other facility requiring the services of those persons.
383.133. 1. [Beginning on January 1, 1987,] The chief executive office or similarly empowered official of any hospital [or] , ambulatory surgical center, as such [term is] terms are defined in [section 197.200] chapter 197, RSMo, or temporary nursing staffing agency, shall report to the appropriate health care professional licensing authority any disciplinary action against any health care professional or the voluntary resignation of any health care professional against whom any complaints or reports have been made which might have led to disciplinary action.
2. All reports required by this section shall be submitted within fifteen days of the final disciplinary action and shall contain, but need not be limited to, the following information:
(1) The name, address and telephone number of the person making the report;
(2) The name, address and telephone number of the person who is the subject of the report;
(3) A [brief] description of the facts, including as much detail and information as possible, which gave rise to the issuance of the report, including the dates of occurrence deemed to necessitate the filing of the report;
(4) If court action is involved and known to the reporting agent, the identity of the court, including the date of filing and the docket number of the action.
3. Upon request, the licensing authority may furnish a report of any disciplinary action received by it under the provisions of this section to any [of the hospitals or ambulatory surgical centers] entity required to report under this section. Such licensing authority may also furnish, upon request, a report of disciplinary action taken by the licensing authority to any other administrative or law enforcement agency acting within the scope of its statutory authority.
4. There shall be no liability on the part of, and no cause of action of any nature shall arise against any health care professional licensing authority or any [hospital or ambulatory surgical center] entity required to report under this section, or any of their agents or employees for any action taken in good faith and without malice in carrying out the provisions of this section.
5. Neither a report required to be filed under subsection 2 of this section nor the record of any proceeding shall be used against a health care professional in any other administrative or judicial proceeding.
6. Violation of any provision of this section is an infraction.