Chapter 3 Professional Licensing Boards and the Administrative Hearing Commission

• Library: Missouri Professional Licensing (2018 Ed.)

Chapter 3

Professional Licensing Boards and the Administrative Hearing Commission

A. Jurisdiction and Statute of Limitations

B. Applications, Denials, and Refusals to Issue or Renew Without Probation

C. Automatic Denials

D. Public Complaint Process

A. Jurisdiction and Statute of Limitations

The AHC (Administrative Hearing Commission) has been in existence in Missouri since 1965. This allows matters that are highly technical or require a more thorough understanding of the particular profession to be heard routinely by the same entity and frees up licensing boards for fulfilling their role to issue licenses, exercise their prosecutorial discretion, and promulgate profession-specific rules. Eugene G. Bushmann, The Origin of the Administrative Hearing Commission, 62 J. MoBar 366 (2006).

The AHC generally hears all other types of administrative matters involving denials of professional applicants and disciplinary complaints, and it provides an independent tribunal to conduct hearings and make findings of fact and conclusions of law regarding whether a licensee is entitled to licensure or was improperly denied licensure by the board, or whether there is cause for discipline. Section 621.045, RSMo 2016. The AHC has no more and no less authority than what is granted by the legislature. It is authorized to conduct hearings and make its findings on the evidence presented, and it only decides whether the board is entitled to license or discipline. State Bd. of Registration for Healing Arts v. Masters, 512 S.W.2d 150, 161 (Mo. App. W.D. 1974).

Procedures before the AHC are governed by Chapters 536 and 621, RSMo. The AHC is made up of not more than five commissioners, who are attorneys at law and appointed by the Governor. Section 621.015, RSMo 2016. Hearings before the AHC are open to the public. The commissioners do not hold hearings as a panel, and their decisions can vary.

Whether an applicant or licensee has the right to disqualify a commissioner from hearing a case has been peripherally raised in State ex rel. Rosenberg v. Jarrett, 233 S.W.3d 757 (Mo. App. W.D. 2007). The court of appeals upheld the quashing of a writ of prohibition sought on the ground that Dr. Rosenberg was denied a change of commissioner. In discussing the issue, the court found that while Supreme Court of Missouri rules may apply “‘when specifically authorized by statute,’” the general rule is that the Missouri Rules of Civil Procedure do not govern administrative proceedings. Id. at 762 (citing Woodman v. Dir. of Revenue, 8 S.W.3d 154, 157 (Mo. App. W.D. 1999)). Cf. § 536.068.1, RSMo 2016. Further, neither Chapter 621 nor Chapter 536 provides for any change in commissioners, nor does the Code of State Regulations. Thus, while this ultimate issue was not truly decided, it is clear that there is no unqualified right to change commissioners.

A case heard by the AHC is a “contested case.” By definition, a contested case is “a proceeding before an agency in which legal rights, duties or privileges of specific parties are required by law to be determined after hearing.” Section 536.010(4), RSMo 2016. A contested case is instituted by the filing of a writing seeking a hearing. Section 536.063(1), RSMo 2016. Formality of procedure may be waived as long as there is a reasonable opportunity to be heard. Section 536.063(3). The agency may also require answers to be filed. See generally § 536.063(1).

Since 1999, there has been a statute of limitations for disciplinary actions involving professionals. Section 324.043.1, RSMo 2016, provides a three-year statute of limitations from the date the board has notice of an alleged violation of a professional licensing law until a complaint is filed by the AHC or other court or agency or until a complaint is filed with the agency with respect to an automatic revocation or probation violation. Notice includes:

· complaints from the public;

· final dispositions of malpractice claims;

· final convictions; and

· final disciplinary action by a hospital or state or federal entity.

Section 324.043.2. Notable exceptions that are not affected by this statute of limitations include repeated negligence and sexual misconduct complaints. Section 324.043.4 and .5. The statute of limitations is also tolled during the following times:

· When the licensee is not practicing or residing in Missouri

· While a complainant is less than 18 years of age

· When a settlement offer is made and not rejected or accepted

· While legal action is pending by the licensee against the board

Section 324.043.6. It is discretionary whether the statute is also tolled during treatment for chemical dependency. Section 324.043.7.

It has long been held that the equitable defense of laches does not apply to professional licensing matters. See, e.g., Perez v. Mo. State Bd. of Registration for Healing Arts, 803 S.W.2d 160 (Mo. App. W.D. 1991).

B. Applications, Denials, and Refusals to Issue or Renew Without Probation

Applicants for many professional licenses must be:

· of good moral character;

· of a particular age (depending on the profession and the length of schooling involved); and

· free from background causes that would result in disciplinary action against a licensee.

A professional who holds a license in good standing in another state and who has not been previously denied a license in other states or disciplined in other states may be granted reciprocity in Missouri. Some boards must examine whether the license was granted in the other state under similar conditions that licensure would have been granted in Missouri. Each board’s rules, found in the Code of State Regulations, include a current version of the board’s license application.

Testing or examinations are taken after the board has reviewed the applications and found the basic qualifications for licensure. Many boards test for a professional’s knowledge of the statutes and rules that...