SECOND REGULAR SESSION
[P E R F E C T E D]
SENATE SUBSTITUTE FOR
SENATE SUBSTITUTE FOR
SENATE COMMITTEE SUBSTITUTE FOR
SENATE BILL NO. 1122
92ND GENERAL ASSEMBLY
INTRODUCED BY SENATOR SHIELDS.
Offered March 17, 2004.
Senate Substitute for Senate Substitute adopted, March 17, 2004.
Taken up for Perfection March 17, 2004. Bill declared Perfected and Ordered Printed, as amended.
TERRY L. SPIELER, Secretary.
4017S.09P
AN ACT
To repeal sections 332.051, 332.071, 332.081, 332.111, 332.121, and 334.100, RSMo, and to enact in lieu thereof seven new sections relating to professional licensing, with penalty provisions.
Section A. Sections 332.051, 332.071, 332.081, 332.111, 332.121, and 334.100, RSMo, are repealed and seven new sections enacted in lieu thereof, to be known as sections 332.032, 332.051, 332.071, 332.081, 332.111, 332.121, and 334.100, to read as follows:
332.032. 1. Upon unanimous consent of the members of the board, the president or secretary of the board shall administer oaths, subpoena witnesses, issue subpoenas duces tecum, and require production of documents and records pertaining to the practice of dentistry. Subpoenas, including 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, including subpoena 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 obey a subpoena to show cause why such subpoena should not be enforced, which such order and a copy of the application therefore 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 should be sustained and enforced, such court shall proceed to enforce the subpoena in the same manner as though the subpoena had been issued in a civil case in the circuit court.
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] any person licensed to practice dentistry or entity permitted to provide dental services in this state, including all facilities and equipment related to the delivery of dental care or the fabrication or adjustment of dental prostheses and all clinical and administrative records related to the dental care of patients with respect to violations of the provisions of this chapter.
332.071. A person or other entity "practices dentistry" within the meaning of this chapter who:
(1) Undertakes to do or perform dental work or dental services or dental operations or oral surgery, by any means or methods, including the use of lasers, gratuitously or for a salary or fee or other reward, paid directly or indirectly to the person or to any other person or entity;
(2) Diagnoses or professes to diagnose, prescribes for or professes to prescribe for, treats or professes to treat, any disease, pain, deformity, deficiency, injury or physical condition of human teeth or adjacent structures or treats or professes to treat any disease or disorder or lesions of the oral regions;
(3) Attempts to or does replace or restore a part or portion of a human tooth;
(4) Attempts to or does extract human teeth or attempts to or does correct malformations of human teeth or jaws;
(5) Attempts to or does adjust an appliance or appliances for use in or used in connection with malposed teeth in the human mouth;
(6) Interprets or professes to interpret or read dental radiographs;
(7) Administers an anesthetic in connection with dental services or dental operations or dental surgery;
(8) Undertakes to or does remove hard and soft deposits from or polishes natural and restored surfaces of teeth;
(9) Uses or permits to be used for the person's benefit or for the benefit of any other person or other entity the following titles or words in connection with the person's name: "Doctor", "Dentist", "Dr.", "D.D.S.", or "D.M.D.", or any other letters, titles, degrees or descriptive matter which directly or indirectly indicate or imply that the person is willing or able to perform any type of dental service for any person or persons, or uses or permits the use of for the person's benefit or for the benefit of any other person or other entity any card, directory, poster, sign or any other means by which the person indicates or implies or represents that the person is willing or able to perform any type of dental services or operation for any person;
(10) Directly or indirectly owns, leases, operates, maintains, manages or conducts an office or establishment of any kind in which dental services or dental operations of any kind are performed for any purpose; but this section shall not be construed to prevent owners or lessees of real estate from lawfully leasing premises to those who are qualified to practice dentistry within the meaning of this chapter;
(11) Controls, influences, attempts to control or influence, or otherwise interferes with the dentist's independent professional judgment regarding the diagnosis or treatment of a dental disease, disorder, or physical condition;
(12) Constructs, supplies, reproduces or repairs any prosthetic denture, bridge, artificial restoration, appliance or other structure to be used or worn as a substitute for natural teeth, except when one, not a registered and licensed dentist, does so pursuant to a written uniform laboratory work order, in the form to be prescribed by the board and copies of which shall be retained by the nondentist for two years, of a dentist registered and currently licensed in Missouri and which the substitute in this subdivision described is constructed upon or by use of casts or models made from an impression furnished by a dentist registered and currently licensed in Missouri;
[(12)] (13) Attempts to or does place any substitute described in subdivision [(11)] (12) of this section in a human mouth or attempts to or professes to adjust any substitute or delivers any substitute to any person other than the dentist upon whose order the work in producing the substitute was performed;
[(13)] (14) Advertises, solicits, or offers to or does sell or deliver any substitute described in subdivision [(11)] (12) of this section or offers to or does sell the person's services in constructing, reproducing, supplying or repairing the substitute to any person other than a registered and licensed dentist in Missouri;
[(14)] (15) Undertakes to do or perform any physical evaluation of a patient in the person's office or in a hospital, clinic, or other medical or dental facility prior to or incident to the performance of any dental services, dental operations, or dental surgery;
(16) Reviews examination findings, x-rays, or other patient data to make judgments or decisions about the quality of dental care rendered to a patient in this state.
332.081. 1. No person or other entity shall practice dentistry in Missouri or provide dental services as defined in section 332.071 unless and until the board has issued to the person a certificate certifying that the person has been duly registered as a dentist in Missouri or to an entity that has been duly registered to provide dental services by licensed dentists and dental hygienists and unless and until the board has issued to the person a license, to be renewed each period, as provided in this chapter, to practice dentistry or as a dental hygienist, or has issued to the person or entity a permit, to be renewed each period, to provide dental services in Missouri[; but]. Nothing in this chapter shall be so construed as to make it unlawful for: [a legally qualified and licensed physician or surgeon, who does not practice dentistry as a specialty, from extracting teeth, or to make it unlawful for a dentist licensed in a state other than Missouri from making a clinical demonstration before a meeting of dentists in Missouri, or to make it unlawful for dental students in any accredited dental school to practice dentistry under the personal direction of instructors, or to make it unlawful for any duly registered and licensed dental hygienist in Missouri to practice as a dental hygienist as defined in section 332.091, or to make it unlawful for dental assistants, certified dental assistants or expanded functions dental assistants to be delegated duties as defined in section 332.093, or to make it unlawful for persons to practice dentistry in the United States armed services or in or for the United States Public Health Service, or in or for the United States Veterans Bureau, or to make it unlawful to teach in an accredited dental school, or to make it unlawful for a duly qualified anesthesiologist or anesthetist to administer an anesthetic in connection with dental services or dental surgery.]
(1) A legally qualified physician or surgeon, who does not practice dentistry as a specialty, from extracting teeth;
(2) A dentist licensed in a state other than Missouri from making a clinical demonstration before a meeting of dentists in Missouri;
(3) Dental students in any accredited dental school to practice dentistry under the personal direction of instructors;
(4) Dental hygiene students in any accredited dental hygiene school to practice dental hygiene under the personal direction of instructors;
(5) A duly registered and licensed dental hygienist in Missouri to practice dental hygiene as defined in section 332.091;
(6) A dental assistant, certified dental assistant, or expanded functions dental assistant to be delegated duties as defined in section 332.093;
(7) A duly registered dentist or dental hygienist to teach in an accredited dental or dental hygiene school;
(8) A duly qualified anesthesiologist or nurse anesthetist to administer an anesthetic in connection with dental services or dental surgery; or
(9) A person to practice dentistry in or for:
(a) The United States armed forces;
(b) The United States Public Health Service;
(c) Migrant, community, or health care for the homeless health centers provided in section 330 of the Public Health Service Act (42 U.S.C. 254b);
(d) Federally qualified health centers as defined in section 1905(l) (42 U.S.C. 1396d(l)) of the Social Security Act;
(e) Governmental entities, including county health departments; or
(f) The United States Veterans Bureau.
(10) A dentist licensed in a state other than Missouri to evaluate a patient or render an oral, written, or otherwise documented dental opinion when providing testimony or records for the purpose of a civil or criminal action before any judicial or administrative proceeding of this state or other forum in this state.
2. No corporation shall practice dentistry as defined in section 332.071 unless that corporation is organized under the provisions of chapter 355 or 356, RSMo, provided that a corporation organized under the provisions of chapter 355, RSMo, and qualifying as an organization under 26 U.S.C. Section 501(c)(3), may only employ dentists and dental hygienists licensed in this state to render dental services to Medicaid recipients, low-income individuals who have available income below two hundred percent of the federal poverty level, and all participants in the SCHIP program, unless such limitation is contrary to or inconsistent with federal or state law or regulation. This subsection shall not apply to a hospital licensed pursuant to chapter 197, RSMo, that provides care and treatment only to children under the age of eighteen, a federally qualified health center as defined in Section 1905(l) of the Social Security Act (42 U.S.C. 1396d(l)), or a migrant, community, or health care for the homeless health center provided for in Section 330 of the Public Health Services Act (42 U.S.C. 254 (b)), at which a person regulated under this chapter provides dental care within the scope of his or her license or registration. This subsection shall not apply to a city or county health department organized pursuant to chapter 192, RSMo, or chapter 205, RSMo, a social welfare board organized pursuant to section 205.770, RSMo, a city health department operating under a city charter, or a city-county health department, at which a person regulated under this chapter provides dental care within the scope of his or her license or registration. Nothing in this subsection shall prohibit such children's hospital, federally qualified health center, city or county health department, social welfare board, city health department operating under a city charter, city-county health department, or migrant, community, or health care for the homeless health center from employing any person regulated by this chapter. If any of the entities exempted from the requirements of this subsection are unable to provide services to a patient for any reason and a referral to another corporation is made, the exemption shall extend to any corporation which subsequently provides services to the patient.
3. No unincorporated organization shall practice dentistry as defined in section 332.071, RSMo, unless such organization is exempt from federal taxation under section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and provides dental treatment without compensation from the patient or any third party on their behalf as a part of a broader program of social services including food distribution. Nothing in this chapter shall prohibit organizations under this subsection from employing any person regulated by this chapter.
4. A dentist shall not enter into a contract that allows a person who is not a dentist to influence or interfere with the exercise of the dentist's independent professional judgment.
5. A not-for-profit corporation organized under the provisions of chapter 355, RSMo, and qualifying as an organization under 26 U.S.C. Section 501(c)(3), an unincorporated organization operating pursuant to subsection 3 of this section, or any other person should not direct or interfere or attempt to direct or interfere with a licensed dentist's professional judgment and competent practice of dentistry. Nothing in this subsection shall be so construed as to make it unlawful for not-for-profit organizations to enforce employment contracts, corporate policy and procedure manuals, or quality improvement or assurance requirements.
6. A not-for-profit corporation organized under the provisions of chapter 355, RSMo, and qualifying as an organization under 26 U.S.C. Section 501 (c)(3) or an unincorporated organization operating pursuant to subsection 3 of this section shall apply for a permit to employ dentists and dental hygienists licensed in this state to render dental services, and the corporation shall apply for the permit in writing on forms provided by the Missouri dental board. The board shall not charge a fee of any kind for the issuance or renewal of such permit. The provisions of this subsection shall not apply to a federally qualified health center as defined in Section 1905(l) of the Social Security Act (42 U.S.C. 1396d(l)) or governmental entities, including county health departments.
7. Any entity that obtains a permit to render dental services in this state is subject to discipline pursuant to section 332.321. If the board concludes that the person or entity has committed an act or is engaging in a course of conduct that would be grounds for disciplinary action, the board may file a complaint before the administrative hearing commission. The board may refuse to issue or renew the permit of any entity for one or any combination of causes stated in subsection 2 of section 332.321. 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.
8. A federally qualified health center as defined in Section 1905(l) of the Social Security Act (42 U.S.C. 1396d(l)) shall register with the board. The information provided to the board as part of the registration shall include the name of the health center, the non-profit status of the health center, sites where dental services will be provided, and the names of all persons employed by, or contracting with, the health center who are required to hold a license pursuant to this chapter. The registration shall be renewed every twenty-four months. The board shall not charge a fee of any kind for the issuance or renewal of the registration. The registration of the health center shall not be subject to discipline pursuant to section 332.321. Nothing in this subsection shall prohibit disciplinary action against a licensee of this chapter who is employed by, or contracts with, such health center for the actions of the licensee in connection with such employment or contract. All licensed persons employed by, or contracting with, the health center shall certify in writing to the board at the time of issuance and renewal of the registration that the facility of the health center meets the same operating standards regarding cleanliness, sanitation, and professionalism as would the facility of a dentist licensed by this chapter. The board shall promulgate rules regarding such standards.
9. The board may promulgate rules and regulations to ensure not-for-profit corporations are rendering care to the patient populations as set forth herein, including requirements for covered not-for-profit corporations to report patient census data to the board. The provisions of this subsection shall not apply to a federally qualified health center as defined in Section 1905(l) of the Social Security Act (42 U.S.C. 1396d(l)).
10. All not-for-profit corporations organized or operated pursuant to the provisions of chapter 355, RSMo, and qualifying as an organization under 26 U.S.C. Section 501(c)(3), or the requirements relating to migrant, community, or health care for the homeless health centers provided in Section 330 of the Public Health Service Act (42 U.S.C. 254b) and federally qualified health centers as defined in Section 1905(l) (42 U.S.C. 1396d(l)) of the Social Security Act, that employ persons who practice dentistry or dental hygiene in this state shall do so in accordance with the relevant laws of this state except to the extent that such laws are contrary to, or inconsistent with, federal statute or regulation.
332.111. Any person who practices dentistry as defined in section 332.071, or as a dental hygienist as defined in section 332.091, who is not [a] duly registered and currently licensed [dentist] in Missouri as hereinafter provided, [or any person who practices as a dental hygienist as defined in section 332.091 who is not a duly registered and currently licensed dental hygienist in Missouri as hereinafter provided] is guilty of a class A misdemeanor.
332.121. 1. Upon application by the board and the necessary burden having been met, a court of general jurisdiction may grant an injunction, restraining order, or other order as may be appropriate to enjoin a person [or], corporation, firm, or other entity from:
(1) Offering to engage or engaging in the performance of any acts or practices for which a certificate of registration or authority, permit or license is required by this chapter upon a showing that such acts or practices were performed or offered to be performed without a certificate of registration or authority, permit or license; or
(2) Engaging in any practice or business authorized by a certificate of registration or authority, permit or license issued pursuant to this chapter upon a showing that the holder presents a substantial probability of serious danger to the health, safety or welfare of any resident of this state or client or patient of the licensee; or
(3) Directing, interfering with, or attempting to direct or interfere with a licensed dentist's professional judgment or competent practice of dentistry.
Nothing is this subsection shall be so construed as to make it unlawful for not-for-profit organizations to enforce employment contracts, corporate policy and procedure manuals, or quality improvement or assurance requirements.
2. Any such action shall be commenced either in the county in which the defendant resides or in the county in which such conduct occurred.
3. Any action brought under this section shall be in addition to and not in lieu of any penalty provided by this chapter and may be brought concurrently with other actions to enforce this chapter.
334.100. 1. The board may refuse to issue or renew any certificate of registration or authority, permit or license required pursuant to this chapter 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 the applicant's right to file a complaint with the administrative hearing commission as provided by chapter 621, RSMo. As an alternative to a refusal to issue or renew any certificate, registration or authority, the board may, at its discretion, issue a license which is subject to probation, restriction or limitation to an applicant for licensure for any one or any combination of causes stated in subsection 2 of this section. The board's order of probation, limitation or restriction shall contain a statement of the discipline imposed, the basis therefore, the date such action shall become effective, and a statement that the applicant has thirty days to request in writing a hearing before the administrative hearing commission. If the board issues a probationary, limited or restricted license to an applicant for licensure, either party may file a written petition with the administrative hearing commission within thirty days of the effective date of the probationary, limited or restricted license seeking review of the board's determination. If no written request for a hearing is received by the administrative hearing commission within the thirty-day period, the right to seek review of the board's decision shall be considered as waived.
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 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 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 under 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 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 this chapter or in obtaining permission to take any examination given or required pursuant to this chapter;
(4) Misconduct, fraud, misrepresentation, dishonesty, unethical conduct or unprofessional conduct in the performance of the functions or duties 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 or other compensation by fraud, deception or misrepresentation; willfully and continually overcharging or overtreating patients; or charging for visits to the physician's office which did not occur unless the services were contracted for in advance, or for services which were not rendered or documented 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 use of a second opinion or consultation;
(c) Willfully and continually performing inappropriate or unnecessary treatment, diagnostic tests or medical or surgical services;
(d) Delegating professional responsibilities to a person who is not qualified by training, skill, competency, age, experience or licensure to perform such responsibilities;
(e) Misrepresenting that any disease, ailment or infirmity can be cured by a method, procedure, treatment, medicine or device;
(f) Performing or prescribing medical services which have been declared by board rule to be of no medical or osteopathic value;
(g) Final disciplinary action by any professional medical or osteopathic association or society or licensed hospital or medical staff of such hospital in this or any other state or territory, whether agreed to voluntarily or not, and including, but not limited to, any removal, suspension, limitation, or restriction of the person's license or staff or hospital privileges, failure to renew such privileges or license for cause, or other final disciplinary action, if the action was in any way related to unprofessional conduct, professional incompetence, malpractice or any other violation of any provision of this chapter;
(h) Signing a blank prescription form; or dispensing, prescribing, administering or otherwise distributing any drug, controlled substance or other treatment without sufficient examination, or for other than medically accepted therapeutic or experimental or investigative purposes duly authorized by a state or federal agency, or not in the course of professional practice, or not in good faith to relieve pain and suffering, or not to cure an ailment, physical infirmity or disease, except as authorized in section 334.104;
(i) Exercising influence within a physician-patient relationship for purposes of engaging a patient in sexual activity;
(j) Terminating the medical care of a patient without adequate notice or without making other arrangements for the continued care of the patient;
(k) Failing to furnish details of a patient's medical records to other treating physicians or hospitals upon proper request; or failing to comply with any other law relating to medical records;
(l) Failure of any applicant or licensee, other than the licensee subject to the investigation, to cooperate with the board during any investigation;
(m) Failure to comply with any subpoena or subpoena duces tecum from the board or an order of the board;
(n) Failure to timely pay license renewal fees specified in this chapter;
(o) Violating a probation agreement with this board or any other licensing agency;
(p) Failing to inform the board of the physician's current residence and business address;
(q) Advertising by an applicant or licensee which is false or misleading, or which violates any rule of the board, or which claims without substantiation the positive cure of any disease, or professional superiority to or greater skill than that possessed by any other physician. An applicant or licensee shall also be in violation of this provision if the 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 dangerous to the mental or physical health of a patient or the public; or incompetency, gross negligence or repeated negligence in the performance of the functions or duties of any profession licensed or regulated by this chapter. For the purposes of this subdivision, "repeated negligence" means the failure, on more than one occasion, to use that degree of skill and learning ordinarily used under the same or similar circumstances by the member 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 this chapter, or of 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) Revocation, suspension, restriction, modification, limitation, reprimand, warning, censure, probation or other final disciplinary action against the holder of or applicant for a license or other right to practice any profession regulated by this chapter by another state, territory, federal agency or country, whether or not voluntarily agreed to by the licensee or applicant, including, but not limited to, the denial of licensure, surrender of the license, allowing the license to expire or lapse, or discontinuing or limiting the practice of medicine while subject to an investigation or while actually under investigation by any licensing authority, medical facility, branch of the armed forces of the United States of America, insurance company, court, agency of the state or federal government, or employer;
(9) A person is finally adjudged incapacitated or disabled by a court of competent jurisdiction;
(10) Assisting or enabling any person to practice or offer to practice any profession licensed or regulated by this chapter who is not registered and currently eligible to practice pursuant to this chapter; or knowingly performing any act which in any way aids, assists, procures, advises, or encourages any person to practice medicine who is not registered and currently eligible to practice pursuant to this chapter. A physician who works in accordance with standing orders or protocols or in accordance with the provisions of section 334.104 shall not be in violation of this subdivision;
(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 if so required by this chapter or any rule promulgated pursuant to this chapter;
(13) Violation of the drug laws or rules and regulations of this state, any other state or the federal government;
(14) Knowingly making, or causing to be made, or aiding, or abetting in the making of, a false statement in any birth, death or other certificate or document executed in connection with the practice of the person'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 the name of another person or concern, actual or pretended, in such a manner as to confuse, deceive, or mislead the public as to the need or necessity for or appropriateness of health care services for all patients, or the qualifications of an individual person or persons to diagnose, render, or perform health care services;
(16) Using, or permitting the use of, the person's name under the designation of "Doctor", "Dr.", "M.D.", or "D.O.", or any similar designation with reference to the commercial exploitation of any goods, wares or merchandise;
(17) Knowingly making or causing to be made a false statement or misrepresentation of a material fact, with intent to defraud, for payment pursuant to the provisions of chapter 208, RSMo, or chapter 630, RSMo, or for 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 an unsanitary office or performing professional services under unsanitary conditions; or failure to report the existence of an unsanitary condition in 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 a physical therapist, paying or offering to pay a referral fee or, notwithstanding section 334.010 to the contrary, practicing or offering to practice professional physical therapy independent of the prescription and direction of a person licensed and registered as a physician and surgeon pursuant to this chapter, as a dentist pursuant to chapter 332, RSMo, or as a podiatrist pursuant to chapter 330, RSMo, or any similarly validly licensed and registered person practicing in another jurisdiction, whose license is in good standing;
(20) Any candidate for licensure or person licensed to practice as a physical therapist, treating or attempting to treat ailments or other health conditions of human beings other than by professional physical therapy 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 the patient receive prescribed drugs, devices or other professional services directly from facilities of that physician's office or other entities under that physician's ownership or control. A physician shall provide the patient with a prescription which may be taken to the facility selected by the patient and a physician knowingly failing to disclose to a patient on a form approved by the advisory commission for professional physical therapists as established by section 334.625 which is dated and signed by a patient or guardian acknowledging that the patient or guardian has read and understands that the physician has a pecuniary interest in a physical therapy or rehabilitation service providing prescribed treatment and that the prescribed treatment is available on a competitive basis. This subdivision shall not apply to a referral by one physician to another physician within a group of physicians practicing together;
(22) A pattern of personal use or consumption of any controlled substance unless it is prescribed, dispensed or administered by another physician who is authorized by law to do so;
(23) Revocation, suspension, limitation or restriction of any kind whatsoever of any controlled substance authority, whether agreed to voluntarily or not;
(24) For a physician to operate, conduct, manage, or establish an abortion facility, or for a physician to perform an abortion in an abortion facility, if such facility comes under the definition of an ambulatory surgical center pursuant to sections 197.200 to 197.240, RSMo, and such facility has failed to obtain or renew a license as an ambulatory surgical center;
(25) Being unable to practice as a physician and surgeon or with a specialty with reasonable skill and safety to patients by reasons of medical or osteopathic incompetency, or because of illness, drunkenness, excessive use of drugs, narcotics, chemicals, or as a result of any mental or physical condition. The following shall apply to this subdivision:
(a) In enforcing this subdivision the board shall, after a hearing by the board, upon a finding of probable cause, require a physician to submit to a reexamination for the purpose of establishing his or her competency to practice as a physician or surgeon or with a specialty conducted in accordance with rules adopted for this purpose by the board, including rules to allow the examination of the pattern and practice of such physician's or surgeon's professional conduct, or to submit to a mental or physical examination or combination thereof by at least three physicians, one selected by the physician compelled to take the examination, one selected by the board, and one selected by the two physicians so selected who are graduates of a professional school approved and accredited as reputable by the association which has approved and accredited as reputable the professional school from which the licentiate graduated. However, if the physician is a graduate of a medical school not accredited by the American Medical Association or American Osteopathic Association, then each party shall choose any physician who is a graduate of a medical school accredited by the American Medical Association or the American Osteopathic Association;
(b) For the purpose of this subdivision, every physician licensed pursuant to this chapter is deemed to have consented to submit to a mental or physical examination when directed in writing by the board and further to have waived all objections to the admissibility of the examining physician's testimony or examination reports on the ground that the examining physician's testimony or examination is privileged;
(c) In addition to ordering a physical or mental examination to determine competency, the board may, notwithstanding any other law limiting access to medical or other health data, obtain medical data and health records relating to a physician or applicant without the physician's or applicant's consent;
(d) Written notice of the reexamination or the physical or mental examination shall be sent to the physician, by registered mail, addressed to the physician at the physician's last known address. Failure of a physician to designate an examining physician to the board or failure to submit to the examination when directed shall constitute an admission of the allegations against the physician, in which case the board may enter a final order without the presentation of evidence, unless the failure was due to circumstances beyond the physician's control. A physician whose right to practice has been affected under this subdivision shall, at reasonable intervals, be afforded an opportunity to demonstrate that the physician can resume the competent practice as a physician and surgeon with reasonable skill and safety to patients;
(e) In any proceeding pursuant to this subdivision neither the record of proceedings nor the orders entered by the board shall be used against a physician in any other proceeding. Proceedings under this subdivision shall be conducted by the board without the filing of a complaint with the administrative hearing commission;
(f) 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 disciplinary measures set forth in subsection 4 of this section.
3. Collaborative practice arrangements, protocols and standing orders shall be in writing and signed and dated by a physician prior to their implementation.
4. After the filing of such complaint before the administrative hearing commission, 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, warn, 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 ten years, or may suspend the person's license, certificate or permit for a period not to exceed three years, or restrict or limit the person's license, certificate or permit for an indefinite period of time, or revoke the person's license, certificate, or permit, or administer a public or private reprimand, or deny the person's application for a license, or permanently withhold issuance of a license or require the person to submit to the care, counseling or treatment of physicians designated by the board at the expense of the individual to be examined, or require the person to attend such continuing educational courses and pass such examinations as the board may direct.
5. In any order of revocation, the board may provide that the person may not apply for reinstatement of the person's license for a period of time ranging from two to seven years following the date of the order of revocation. All stay orders shall toll this time period.
6. Before restoring to good standing a license, certificate or permit issued pursuant to this chapter which has been in a revoked, suspended or inactive state for any cause for more than two years, the board may require the applicant to attend such continuing medical education courses and pass such examinations as the board may direct.
7. 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 which 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.