PURPOSE: This rule establishes the procedures to be followed in implementing section 332.321.2(20), RSMo.

1. (1) Whenever it shall appear to the board that a hearing is necessary to determine whether a dentist, specialist or hygienist is unable to practice because of any of the reasons set forth in section 332.321.2(20), RSMo, the procedures for carrying out the provisions of this section shall be set forth in this rule.

2. (2) The board shall commence the proceedings sending at least twenty (20) days prior to the hearing date by certified mail a Notice of Probable Cause Hearing to the practitioner at his/her last address known to the board. The Notice of Probable Cause Hearing shall contain:

   1. (A) A short and plain statement of the grounds upon which the practitioner is being charged and a copy of the statute under which s/he is charged;
   2. (B) The potential sanctions which could be imposed against the certificate of registration and/or license of the practitioner;
   3. (C) A statement advising the practitioner of his/her right to be represented by legal counsel; and
   4. (D) The time, date and place of the hearing.
3. (3) Discovery shall be as provided by Chapter 536, RSMo unless the parties agree otherwise. The procedures for taking depositions shall be the same as provided by Missouri Supreme Court rules for civil cases.
4. (4) Upon the request of either party, the executive director shall issue subpoenas and, in a proper case, subpoenas duces tecum. The procedure for the issuance of subpoenas shall be the same rules as those of the Administrative Hearing Commission.
5. (5) The probable cause hearing shall be held at the time, date and place specified in the notice unless otherwise continued by agreement, or upon timely motion, if this motion be granted. The hearing shall be conducted in accordance with the provisions of Chapter 536, RSMo. The presiding officer of the hearing shall be the president of the board or, in his/her absence, another member of the board. The presiding officer shall rule upon motions and the admissibility of evidence. The presiding officer may be assisted by a legal advisor of the board’s choice. Any board member shall be entitled to inquire of any witness.

6. (6) If, following the hearing, the board makes a finding of probable cause, the board shall send notice of its findings to the practitioner by certified mail. In addition to the finding of probable cause, the board may proceed in any one (1) of the following manners:

   1. (A) Require the practitioner to submit to an examination for the purpose of establishing his/her competency to practice as a dentist, specialist or hygienist, or to submit to a mental or physical examination or a combination, which examination shall be conducted in accordance with the provisions of section (7) of this rule;
   2. (B) Enter into a voluntary agreement imposing any one (1) or a combination of sanctions set forth in section 332.321.2(20)(b), RSMo; and
   3. (C) If the board fails to find probable cause, the board shall issue its findings so stating.

7. (7) For the purposes of subsection (6)(A) of this rule, the following shall apply:

   1. (A) A professional competency examination shall be conducted by three (3) dentists or fellow specialists, one (1) of whom shall be selected by the dentist, specialist or hygienist compelled to take the examination, one (1) selected by the board and one (1) to be selected by the two (2) examiners previously selected;
   2. (B) A mental or physical examination, or combination of both, as required shall be by at least three (3) physicians, one (1) of whom shall be selected by the dentist, specialist or hygienist compelled to take the examination, one (1) selected by the board and one (1) to be selected by the two (2) examiners previously selected;
   3. (C) Each party shall assume the cost of the examiner it selects. The parties shall each pay one-half (1/2) of the cost of the third examiner. If the practitioner can demonstrate financial inability to bear the cost of the examination, the board, in its discretion, may assume these costs;
   4. (D) The examiners shall submit their findings to the board in writing, within a time period established by the board. The board shall provide copies of these findings to the practitioner; and
   5. (E) Notice of any examination required under this section shall be by personal service or registered mail.
8. (8) Failure of the dentist, specialist or hygienist to submit to an examination as provided for in section (6) of this rule, when directed to so do, shall constitute an admission of the allegations against him/her, unless the failure was due to circumstances beyond his/her control, if the board so finds.
9. (9) A dentist, specialist or hygienist whose right to practice under this rule, at reasonable intervals, shall be afforded an opportunity to demonstrate that s/he can resume competent practice with reasonable skill and safety to patients.
10. (10) In any proceeding under section 332.321.2(20), RSMo, neither the record of the proceedings nor the orders entered by the board shall be used against a dentist, specialist or hygienist in any other proceeding. Proceedings under section 332.321.2(20), RSMo shall be conducted by the board without the filing of a complaint with the Administrative Hearing Commission.
11. (11) When the board finds any person unqualified because of any of the grounds set forth in section 332.321.2(20), RSMo, the board may enter an order imposing one (1) or more of the sanctions enumerated in section 332.321.2(20)(b), RSMo.
12. (12) Any order or agreement made under section 332.321.2(20), RSMo shall not be considered a matter of public record and shall be excluded from the requirements of 4 CSR 110-2.160(1), except that statistics in aggregate numbers may be included in reports of disciplinary actions published by the board. Information concerning these actions as well as copies of agreements, orders, or both, however, may be furnished certain other regulatory or state agencies in Missouri or some other jurisdiction, if deemed appropriate and necessary by the board. Any violation of any order or agreement made under section 332.321.2(20), RSMo shall be considered a public record in accordance with 4 CSR 110- 2.160(1).
13. (13) The provisions of this rule are declared severable. If any provision of this rule is held invalid by a court of competent jurisdiction, the remaining provisions of this rule shall remain in full force and effect unless otherwise determined by a court of competent jurisdiction.

AUTHORITY: section 332.031, RSMo 1986.* This rule originally filed as 4 CSR 110-2.162. Original rule filed April 16, 1985, effective Aug. 26, 1985. Amended: Filed Sept. 3, 1991, effective Jan. 13, 1992. Moved to 20 CSR 2110-2.162, effective Aug. 28, 2006.

*Original authority: 332.031, RSMo 1969, amended 1981.