Chapter 2 Overview of Professional Licensing

• Library: Missouri Professional Licensing (2018 Ed.)

Chapter 2

Overview of Professional Licensing

A. Division of Professional Registration, Professional Licensing Boards, and Access to Information

B. Members of Professional Licensing Boards

C. Sovereign and Official Immunity

D. Board as a State Agency

E. Rulemaking

F. Common Characteristics

1. Issuance of License, Grounds for Discipline or Denial, or Refusal to Issue Without Probation

a. Issuance of License

b. Inactive License Status

c. Licensing by Compact

d. Retired License Practice

e. Obtaining a License After Disciplinary Action

2. Interpretations of Grounds for Disciplinary Action or Denial

3. Injunctive Authority for Unlicensed or Dangerous Practice

A. Division of Professional Registration, Professional Licensing Boards, and Access to Information

Through a reorganizational transfer, the Division of Professional Registration was moved into the Department of Insurance, Financial Institutions and Professional Registration. Governor Matt Blunt, Exec. Order No. 06-04 (Feb. 1, 2006).

The Division of Professional Registration (the Division) functions as a clearinghouse and financial accounting system for most licensing boards, and it has responsibility for renewals of professional licenses, ministerial issuance of licenses, accounting, and budgeting. The Division also reviews and approves expense vouchers and accounts for rent by each board. Section 324.001, RSMo 2016. The Division has the additional responsibility of accounting to the House and Senate appropriations committees annually regarding the review of expense vouchers. Section 324.001.11(2). There are other boards that govern licensed professionals and operate similarly but are statutorily within other departments. See, e.g., the Board of Nursing Home Administrators, Chapter 344, RSMo, which operates under the Department of Health and Senior Services.

Except for the functions of the Division, the boards generally function with their own personnel, including consultants, investigators, and support staff, for all other aspects of professional licensing. Boards employ legal counsel if authorized by law. Section 324.001.11(4) and (5). Employees of the board serve at the board’s pleasure, and their duties are as prescribed by the board. Section 324.001.11(5). Board personnel are paid within appropriations for their positions and in accordance with the comparable positions of the Department of Insurance, Financial Institutions and Professional Registration. Id. The “director of the division shall exercise only those management functions of the boards and commissions specifically provided in the Reorganization Act of 1974, and those relating to the allocation and assignment of space, personnel other than board personnel, and equipment.” Section 324.001.11(3).

Recognizing that a large portion of the boards’ work involves public protection, the legislature directed that each board adopt a public complaint-handling rule to track complaints and inform complaining parties of the status of pending complaints. Section 324.002, RSMo 2016. A public complainant does not have a right to review investigation materials or application materials. Some of this material may become public during the course of the hearing or be used as evidence in the case. Even then, not all information may become public information or available to a complainant. Discipline and the documents that institute a discipline are always public information. Unlike the criminal law, there is no provision of Missouri law that allows for closure or expungement of disciplinary actions.

Information regarding the identity of professional licensees—including names, addresses, registration, and currency of professional licenses—and the names and addresses of applicants for licenses is not confidential information. Section 324.001.8. The Division is required to maintain a registry of licensees; a board may publish the registry as a directory and include the public information but not a licensee’s Social Security number, which is required in all applications. Sections 324.024 and 324.032, RSMo 2016. Although § 324.032 provides that the public must pay the reasonable copying costs to obtain a copy of the information, as a practical matter it is available online through the Division’s website. Boards are required to answer, without charge, any public inquiry about whether a licensed professional has a current license. Section 324.032.

Public complaints are not always legitimate and genuine. In recognition of the problem faced by health care professionals who work in correctional settings, unsubstantiated complaints and accompanying documentation regarding the complaint made against licensed professionals by individuals incarcerated or under the care and control of the Department of Corrections can be removed and destroyed from the board’s files. This expungement is unique to several professions. See:

· § 334.098, RSMo 2016 (physicians)

· § 332.316, RSMo 2016 (dentists)

· § 335.068, RSMo 2016 (nurses)

· § 337.068, RSMo 2016 (psychologists)

· § 337.649, RSMo 2016 (social workers)

That does not mean that all records of the complaint are destroyed—the Department of Corrections is required to maintain copies for its purposes. Governor Mel Carnahan, Exec. Order No. 99-07 (Aug. 27, 1999) (gubernatorial executive orders are available at www.sos.mo.gov/library/reference/orders). All other types of complaints are retained as records of the board, though not disclosed without release by the licensed professional.

“Public” complaints may also come from members of the same profession in economic competition or related professionals seeking punishment for licensees who have affected them financially. This use of “public complaints” is clearly in contravention of the public protection purpose of the licensing law. See, e.g., the discussion of the purpose of disciplinary cases in Bird v. Missouri Board of Architects, Professional Engineers, Professional Land Surveyors & Landscape Architects, 259 S.W.3d 516, 523 (Mo. banc 2008).

Even though some public complaints may be expunged from a record under particular circumstances, a matter that results in a complaint filed before the AHC (Administrative Hearing Commission) is available to the public, even if the complaint is ultimately dismissed. But see § 335.068, RSMo 2016, sealing AHC findings of no cause in nursing cases. Presumably, whether a licensee is subject to disciplinary action would also be included in the “currency” of the license information available to the public under § 324.001.8.

The legislature has limited the public’s access to other information. Section 324.001.8 states in pertinent part:

8. All educational transcripts, test scores, complaints, investigatory reports, and information pertaining to any person who is an applicant or licensee of any agency assigned to the division of professional registration by statute or by the department are confidential and may not be disclosed to the public or any member of the public, except with the written consent of the person whose records are involved. . . .

Boards also have the right to attorney-client privilege and work-product privilege. Christiansen v. Mo. State Bd. of Accountancy, 764 S.W.2d 943 (Mo. App. W.D. 1988); see also § 324.001.8. These privileges do not apply to all materials collected by the agency, even when the materials are collected in part by the board’s attorney. SeeState ex rel. State Bd. of Pharmacy v. Otto, 866 S.W.2d 480 (Mo. App. W.D. 1993); In reBd. of Registration for Healing Arts v. Spinden, 798 S.W.2d 472 (Mo. App. W.D. 1990); Christiansen, 764 S.W.2d 943. A board is not required, however, to release a complaint, investigatory report, or information received from any source before the board has had the opportunity to review it. Section 324.017.1, RSMo 2016. Any release before review is discretionary.

The agency is also allowed to disclose information about licensees in voluntary interstate exchange or to other state agencies and law enforcement agencies acting within their scope of authority. Sections 324.001.8 and 324.017.4. This allows for the sharing of information between professional licensing boards in Missouri and in other states concerning pending investigations, license applications, and disciplinary actions. Gould v. Mo. State Bd. of Registration for Healing Arts, 841 S.W.2d 288 (Mo. App. E.D. 1992).

Sections 324.001.8 and 324.017 also allow cooperation in investigations between various state agencies in Missouri and federal agencies. Boards such as the Board of Pharmacy, the Dental Board, the Board of Registration for the Healing Arts, and the Board of Nursing work very closely with such agencies as the Missouri Bureau of Narcotics and Dangerous Drugs, the Drug Enforcement Agency, the Federal Bureau of Investigation, and the U.S. Attorney General’s Office. Many times, these agencies will coordinate their investigation and prosecution efforts with a professional licensing board, often filing actions against the licensee in as many different forums as practicable, including criminal charges in state or federal court. A licensee may or may not have access to this federal administrative or law enforcement information depending on the federal administrative or law enforcement agency involved. See § 324.017.3.

Another source of information for licensed health care professional boards is the NPDB (National Practitioner Data Bank) and the former Healthcare Integrity and Protection Data Bank (HIPDB) (combined into the NPDB effective May 6, 2013). See www.npdb.hrsa.gov. It reports all adverse actions involving health care professionals, including the following:

· Peer review actions

· Malpractice cases

· Actions taken to limit, suspend, or revoke staff privileges in hospitals and professional societies with formal peer review

· U.S. Drug Enforcement Administration actions

· Medicare and Medicaid exclusions

· Disciplinary actions in any state

· Licensing and

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