MISSISSIPPI LEGISLATURE

2000 Regular Session

To: Public Health and Welfare

By: Representative Moody

AN ACT RELATING TO THE MISSISSIPPI DENTAL PRACTICE ACT; TO AMEND SECTION 73-9-3, MISSISSIPPI CODE OF 1972, TO CLARIFY THE DEFINITION OF THE PRACTICE OF DENTISTRY; TO AMEND SECTION 73-9-5, MISSISSIPPI CODE OF 1972, TO FURTHER DEFINE THE PRACTICE OF DENTAL HYGIENE; TO AMEND SECTION 73-9-7, MISSISSIPPI CODE OF 1972, TO PROVIDE THAT THE ANNUAL BALLOTING PROCESS FOR LICENSED DENTAL HYGIENISTS IS CONSISTENT WITH THAT FOR LICENSED DENTISTS; TO AMEND SECTION 73-9-23, MISSISSIPPI CODE OF 1972, TO PROVIDE FOR CERTAIN REQUIREMENTS FOR A DENTAL OR DENTAL HYGIENE LICENSE BY EXAMINATION WHEN APPLICANTS ARE GRADUATES FROM UNACCREDITED SCHOOLS; TO AMEND SECTION 73-9-24, MISSISSIPPI CODE OF 1972, TO DEFINE THE CRITERIA FOR AN APPLICANT TO QUALIFY FOR A DENTAL OR DENTAL HYGIENE LICENSE BASED ON CREDENTIALS; TO AMEND SECTION 73-9-25, MISSISSIPPI CODE OF 1972, TO CLARIFY AUTHORITY OF THE MISSISSIPPI STATE BOARD OF DENTAL EXAMINERS TO SET THE DATE AND TIME TO ADMINISTER LICENSE EXAMINATIONS; TO AMEND SECTION 73-9-41, MISSISSIPPI CODE OF 1972, TO DEFINE THOSE ACTS BY UNLICENSED PERSONS WHICH ARE PROHIBITED AND TO AUTHORIZE THE MISSISSIPPI STATE BOARD OF DENTAL EXAMINERS TO CONDUCT HEARINGS AND LEVY FINES IN CASES OF UNLICENSED PRACTICE OF DENTISTRY OR DENTAL HYGIENE; TO AMEND SECTION 73-9-43, MISSISSIPPI CODE OF 1972, TO INCREASE THE ANNUAL LICENSE RENEWAL FEE FOR DENTISTS AND TO PROVIDE THAT A PORTION OF THOSE FEES MAY BE USED TO SUPPORT A PROGRAM TO AID IMPAIRED LICENSEES; TO AMEND SECTION 73-9-61, MISSISSIPPI CODE OF 1972, TO CLARIFY THE GROUNDS UPON WHICH A DENTAL OR DENTAL HYGIENE LICENSE MAY BE DENIED, REVOKED, SUSPENDED OR OTHER DISCIPLINARY ACTION TAKEN; TO AMEND SECTION 73-9-63, MISSISSIPPI CODE OF 1972, TO CLARIFY THE PROCEDURES USED WHEN INITIATING DISCIPLINARY ACTION BEFORE THE DENTAL BOARD AND TO GRANT CERTAIN SUBPOENA POWERS; TO CODIFY THE MISSISSIPPI DISABLED DENTIST LAW; AND FOR RELATED PURPOSES.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MISSISSIPPI:

SECTION 1. Section 73-9-3, Mississippi Code of 1972, is amended as follows:

73-9-3. Any person shall be regarded as practicing dentistry within the meaning of this chapter who * * * performs any act that falls within the definition of the practice of dentistry as may now or hereinafter be adopted by the American Dental Association, and which may be defined from time to time by rule or regulation of the board, provided that nothing herein shall be so construed as to prevent:

1. The practice of his profession by a regularly licensed and registered physician under the laws of this state unless he practices dentistry as a specialty; or

2. The performance of mechanical work upon inanimate objects by persons working in dental offices under their supervision; or

3. The operation of a dental laboratory and taking work by written work authorization from regularly licensed and registered dentists as provided for elsewhere in this chapter; or

4. Dentists from outside the state from giving educational clinics or demonstrations before a dental society, convention or association; or

5. Licensed dentists from outside the state from being called into Mississippi by licensed dentists of this state for consultative or operative purposes when such consultative or operative purposes have been authorized or approved by the Board of Dental Examiners for specified periods of time or as provided for by rules and regulations set forth by the board; or

6. Applicants for license to practice dentistry in this state from working during examination by and under the supervision and direction of the Board of Dental Examiners; or

7. The practice of dentistry or of dental hygiene by students under the supervision of instructors in any dental school, college, or dental department of any school, college, or university, or school of dental hygiene recognized by the board, but such activities shall not be carried on for profit; or

8. Dental or dental hygiene students enrolled in accredited dental or dental hygiene schools from participating in off-site training recognized and approved by the board; or

9. A regularly licensed and registered dentist from the delegation of procedures to a regularly licensed and registered hygienist or other competent dental auxiliary personnel * * * while acting under the direct supervision * * * and full responsibility of the dentist except as follows: Those procedures which require the professional judgment and skill of a dentist such as diagnosis, treatment planning, surgical procedures involving hard or soft tissues, or any intra-oral procedure of an irreversible nature which could result in injury to the patient. Provided, however, the dentist may delegate the removal of calcareous deposits only to a regularly licensed and registered dental hygienist as regulated by the State Board of Dental Examiners.

All dentists and dental hygienists serving as instructors, professors or residents, as provided for in subsections 7 and 8 above, shall be required to be licensed by the Mississippi State Board of Dental Examiners.

SECTION 2. Section 73-9-5, Mississippi Code of 1972, is amended as follows:

73-9-5. (1) For the purpose of this chapter, a dental hygienist shall be an individual who has completed an accredited dental hygiene education program, passed the national dental hygiene board and is licensed by the State Board of Dental Examiners to provide, as an auxiliary to the dentist, preventive care services including, but not limited to, scaling and polishing. In fulfilling these services, dental hygienists provide treatment that helps to prevent oral disease such as dental caries and periodontal disease and for educating patients in prevention of these and other dental problems.

(2) The work of dental hygienists and dental assistants while working in the office of a regularly licensed and registered dentist shall at all times be under the direct supervision * * * of the dentist. Dental hygienists in the employ of the State Board of Health or public school boards shall be limited to only performing oral hygiene instruction and screening when under the general supervision and direction of regularly licensed and registered dentists. Dental hygienists recognized by the board of dental examiners when making public demonstrations of dental hygiene for educational purposes shall be under the general supervision and direction of regularly licensed and registered dentists.

(3) The board of dental examiners may prohibit any dental hygienist or other auxiliary personnel from rendering service that it feels is not in the best interest of the public welfare.

SECTION 3. Section 73-9-7, Mississippi Code of 1972, is amended as follows:

73-9-7. The duties of the Mississippi State Board of Dental Examiners, or "the board," * * * shall be to carry out the purposes and provisions of the laws pertaining to the practice of dentistry and dental hygiene * * *. The board shall consist of seven (7) regularly licensed, registered and practicing dentists, each a graduate of an accredited college of dentistry and each a regularly licensed, registered and practicing dentist within the State of Mississippi for a period of five (5) or more years next preceding his appointment. No dentist shall be eligible for appointment who is connected in any way with any school of dentistry or the dental supply business.

In addition, the board shall include one (1) * * * member who shall be a regularly licensed, registered dental hygienist with at least five (5) years' practical experience. The dental hygienist member shall be appointed by the Governor from the state at large from a list of six (6) dental hygienists. Each of the dental hygienists listed shall be the dental hygienist receiving the highest number of votes in his or her individual district from a poll conducted and compiled by the board. The poll shall consist of a blank ballot with three (3) spaces for nomination provided to all licensed dental hygienists in the state by district. The dental hygienist member shall serve for a term of four (4) years and may succeed himself or herself in office. Any vacancy in the dental hygienist board membership shall be filled by the Governor within sixty (60) days by appointment from the list of nominees submitted for the existing term of office. During the course of each calendar year, the board shall take like polls of all licensed dental hygienists practicing in the state, and shall prepare a new list of six (6) dental hygienists, such list to consist of the dental hygienist receiving the highest number of votes in each district, to be submitted to the Governor, which shall be used in the appointment of the dental hygienist member from the state at large. The terms of the dental hygienist member shall be computed from July 1, 1995.

Except as hereinafter provided, each member of the board * * * shall hold office for the particular term of four (4) years to which he is appointed as differentiated and set out in this section and until his successor shall be duly appointed and qualified. Any appointment made to fill a vacancy or to replace an incumbent holding over shall terminate in accordance with the designation of the particular term as set out below and until his successor is duly appointed and qualified.

Except for the original appointments, the term of each of the seven (7) dentist appointees provided for herein shall be for a period of four (4) years and shall terminate on and after June 30th of the year set out below for each appointive position:

Appointments one (1) and two (2) in 1964 and each fourth year thereafter; appointment three (3) in 1965 and each fourth year thereafter; appointment four (4) in 1966 and each fourth year thereafter; and appointments five (5) and six (6) in 1967 and each fourth year thereafter. Each subsequent appointment shall be made in chronological order of respective expiration dates; provided, however, that each appointee holding office at the time of passage of this chapter shall continue to serve until the expiration date of the period for which he was appointed, and appointment of such incumbent's successors shall be made in order of the expiration dates of their present commissions.

Upon July 1, 1982, the Governor shall appoint one (1) dentist member of the board from the state at large, with the advice and consent of the Senate.

Upon expiration of the term of office of any of the six (6) members of the board who are appointed from districts, the Governor shall appoint his successor from a list of names to be submitted as set out herein. From and after July 1, 1991, all appointments to the Mississippi State Board of Dental Examiners shall be with the advice and consent of the Senate.

As soon after passage of this chapter as feasible, the board shall poll all licensed dentists and dental hygienists in the state by dental district as follows:

Dental District One: Alcorn, Benton, Calhoun, Chickasaw, Choctaw, Clay, Itawamba, Lafayette, Lee, Lowndes, Marshall, Monroe, Oktibbeha, Pontotoc, Prentiss, Tippah, Tishomingo, Union, Webster;

Dental District Two: Bolivar, Carroll, Coahoma, DeSoto, Grenada, Holmes, Humphreys, Issaquena, Leflore, Montgomery, Panola, Quitman, Sharkey, Sunflower, Tallahatchie, Tate, Tunica, Washington, Yalobusha, Yazoo;

Dental District Three: Attala, Clarke, Covington, Forrest, Jasper, Jones, Kemper, Lamar, Lauderdale, Leake, Neshoba, Newton, Noxubee, Perry, Scott, Smith, Wayne, Winston;

Dental District Four: Hinds, Madison, Rankin, Warren;

Dental District Five: George, Greene, Hancock, Harrison, Jackson, Pearl River, Stone;

Dental District Six: Adams, Amite, Claiborne, Copiah, Franklin, Jefferson Davis, Jefferson, Lawrence, Lincoln, Marion, Pike, Simpson, Walthall, Wilkinson;

and request the submission from each such dental district of three (3) nominations for appointment as members of the board. Thirty (30) days after submitting such request, the board shall list all nominations by district according to the number of votes each received. The top three (3) names from each district shall then be considered as a list of names to be submitted to the Governor as referred to above each time a vacancy occurs in one (1) of the six (6) positions appointed from districts or whenever the Governor requests such submission. During the course of each calendar year, the board shall take like polls of all licensed dentists practicing in each dental district, and shall prepare new lists therefrom to be submitted to the Governor which shall be used in the appointment of the six (6) members appointed from districts.

It is the purpose of this section that no more than one (1) appointee of the six (6) members appointed from districts shall serve from any district at any one (1) time; provided, however, that the members serving on the effective date of this section shall continue until their term of office has expired. All subsequent appointments of the six (6) members appointed from districts shall be made in accordance with the provisions of this section, shall be designated by district, and shall be selected by district in accordance with the appropriate list submitted therefor. The names on the lists shall be given priority in accordance with the votes for each nominee. In case of a tie, such persons receiving tie votes shall have their names placed on the list even though it results in more than three (3) names on such list from that district.

The Secretary of State shall, at his discretion, at any time there is sufficient cause, investigate the method and procedure of taking such polls and establishing such lists, and the board shall make available to him all records involved therein; and if the Secretary of State should find cause therefor he may, upon specifying such cause, declare the list invalid, whereupon the board shall follow the procedure set out above to establish a new list. If a vacancy exists and no list is available, the Board of Dental Examiners is * * * to follow the above-described procedure in establishing a new list for the appropriate dental district.

A vote for an individual dentist or dental hygienist in all polls may be counted only once for each ballot no matter how many times the name is listed on the ballot.

SECTION 4. Section 73-9-23, Mississippi Code of 1972, is amended as follows:

73-9-23. (1) No person who desires to practice dentistry or dental hygiene in the State of Mississippi shall be licensed until that person has passed an examination by the board. Applicants for examination shall apply in writing to the secretary of the board for an examination at least thirty (30) days prior to the examination and shall upon application pay a nonrefundable fee * * * as elsewhere provided in this chapter.

(2) An applicant for licensure by examination * * * as a dentist who is a graduate of a dental school accredited by the Commission on Accreditation of Dental and Dental Auxiliary Educational Programs of the American Dental Association (ADA), shall:

(a) * * * Be of good moral character, be possessed of a high school education, and have attained the age of twenty-one (21) years; * * *

(b) Exhibit with the application a diploma or certificate of graduation from the ADA accredited dental school * * *; and

(c) Have successfully completed Parts I and II of the National Board of Examinations of the Joint Commission on National Dental Examinations, unless the applicant graduated from an approved dental school prior to 1960.

(3) An applicant for licensure by examination as a dentist who is a graduate of a non-ADA accredited foreign country dental school shall:

(a) * * * Be of good moral character and have attained the age of twenty-one (21) years;

(b) Be proficient in oral and written communications in the English language;

(c) Have completed not less than six (6) academic years of postsecondary study and graduated from a foreign dental school which is recognized by the licensure authorities in that country;

(d) Have been licensed as a dentist or admitted to the practice of dentistry in the foreign country in which the applicant received foreign dental school training;

(e) Must present documentation of having completed at least two (2) or more years of full-time post-doctoral general dental education in a dental school accredited by the Commission on Accreditation of Dental and Dental Auxiliary Educational Programs of the American Dental Association, and has been certified by the dean of the accredited dental school as having achieved the same level of didactic and clinical competence as expected of a graduate of the school; and

(f) Have successfully completed Parts I and II of the National Board Examinations of the Joint Commission on National Dental Examinations, unless the applicant graduated from an approved dental school prior to 1960.

(4) An applicant for licensure by examination as a dental hygienist who is a graduate of a dental hygiene school accredited by the Commission on Accreditation of Dental and Dental Auxiliary Educational Programs of the American Dental Association (ADA) shall:

(a) * * * Be of good moral character, be possessed of a high school education and have attained the age of eighteen (18) years; and

(b) Exhibit with the application a diploma or certificate of graduation from the ADA accredited dental hygiene school * * *; and

(c) Have successfully completed the National Board Dental Hygiene Examinations by the Joint Commission on National Dental Examinations.

(5) An applicant for licensure by examination as a dental hygienist who is a graduate of a non-ADA accredited foreign country dental hygiene school shall:

(a) * * * Be of good moral character and have attained the age of eighteen (18) years;

(b) Be proficient in oral and written communications in the English language;

(c) Have completed not less than two (2) academic years of postsecondary study and graduated from a foreign dental hygiene school which is recognized by the licensure authorities in that country;

(d) Have been licensed as a dental hygienist or admitted to the practice of dental hygiene in the foreign country in which the applicant received foreign dental hygiene school training;

(e) Must present documentation of having completed at least one or more years of full-time post-graduate clinical education in a dental hygiene school accredited by the Commission on Accreditation of Dental and Dental Auxiliary Educational Programs of the American Dental Association, and has been certified by the dean of the accredited dental hygiene school as having achieved the same level of didactic and clinical competence as expected of a graduate of the school; and

(f) Have successfully completed the National Board * * * Dental Hygiene Examinations by the Joint Commission on National Dental Examinations.

(6) Applications shall be made in the form and content as required in this section and as shall be prescribed by the board, and each applicant shall submit upon request such proof as the board may require as to age, character and qualifications. Applications must be signed by two (2) * * * citizens of the state of which the applicant is a resident, attesting under oath that the applicant * * * is of good moral character. All applicants for licensure shall submit an endorsement from all states in which he or she is currently licensed or has ever been licensed to practice dentistry or dental hygiene * * *. The board may disallow the licensure examination to any applicant who has been found guilty of any of the grounds for disciplinary action as enumerated in Section 73-9-61.

(7) Examination shall be as elsewhere provided in this chapter and the board may by its rules and regulations prescribe reasonable professional standards for oral, written, clinical and other examinations given to applicants * * *. Each applicant shall appear before the board and be examined to determine his or her learning and skill in dentistry or dental hygiene. If found by the members of the board conducting the examination to possess sufficient learning and skill therein and to be of good moral character, the board shall, as early as practicable, grant to such person a license to practice dentistry or dental hygiene, as the case may be, which shall be signed by each member of the board who attended the examination and approved the issuance of a license.

(8) The Board of Dental Examiners may, at its own discretion, accept certification of a licensure applicant, either dentist or dental hygienist, by the National Board of Dental Examiners in lieu of the written examination. However, in all such instances the board shall retain the right to administer such further practical examinations and demonstrations as it deems necessary.

(9) Each application or filing made under this section shall include the social security number(s) of the applicant in accordance with Section 93-11-64, Mississippi Code of 1972.

SECTION 5. Section 73-9-24, Mississippi Code of 1972, is amended as follows:

73-9-24. (1) In addition to the method for obtaining a license to practice dentistry or dental hygiene by way of examination as provided by Section 73-9-23, Mississippi Code of 1972, the board, in its sole discretion, may grant a license to a candidate who meets the following criteria:

(a) Submit proof of graduation from a dental school or school of dental hygiene accredited by the Commission on Accreditation of Dental and Dental Auxiliary Educational Programs of the American Dental Association (ADA).

(b) Be engaged in the active practice of dentistry or dental hygiene or in full-time dental education or dental hygiene education for the past five (5) years;

(c) Currently hold a valid, unrestricted and unexpired license in a state whose standards for licensure are determined by the board as equivalent to Mississippi's standards, and which state grants reciprocity or licensure by credentials to licensees of the State of Mississippi;

(d) Provides an endorsement from all states in which he is currently licensed or has ever been licensed to practice dentistry or dental hygiene;

(e) Has not been the subject of pending or final disciplinary action in any state in which the applicant has been licensed;

(f) Is not the subject of a pending investigation in any other state or jurisdiction;

(g) Has not failed at any time within the past five (5) years, a licensure examination administered by another state or jurisdiction;

(h) Has not failed at any time, a licensure examination administered by the Mississippi State Board of Dental Examiners;

(i) Provides a written statement agreeing to appear for interviews at the request of the board;

(j) Has successfully completed all parts of the National Board of Examinations, unless the applicant graduated from an approved dental or dental hygiene school prior to 1960;

(k) Successfully passes a written jurisprudence examination;

(l) Provides payment of a nonrefundable application fee as provided in Section 73-9-43; and

(m) In addition, the State Board of Dental Examiners may consider the following in accepting, rejecting or denying an application for licensure by credentialing:

(i) Information from the National Practitioner Data Bank and/or the American Association of Dental Examiners Clearinghouse for Disciplinary Information.

(ii) Questioning under oath.

(iii) Results of peer review reports from constituent societies and/or federal dental services.

(iv) Substance abuse testing or treatment.

(v) Background checks for criminal or fraudulent activities.

(vi) Participation in Continuing Education.

(vii) A current certificate in cardiopulmonary resuscitation.

(viii) Recent patient case reports and/or oral defense of diagnosis and treatment plans.

(ix) No physical or psychological impairment that would adversely affect the ability to deliver quality dental care.

(x) Agreement to initiate practice in the credentialing jurisdiction within a reasonable period of time.

(xi) Proof of professional liability coverage and that such coverage has not been refused, declined, canceled, nonrenewed or modified.

(xii) Any additional information or documentation that the board may stipulate by rule or regulation as necessary to qualify for a license by credentialing.

(2) The board shall be granted sufficient time to conduct a complete inquiry into the applicant's qualifications for licensure by credentials, and the board may adopt such rules and regulations pertaining to time needed to conduct investigations and responsibility of applicants to produce verifiable documentation.

(3) Any applicant failing to meet the criteria in subsection (1) above shall not be eligible for a license based on credentials. Upon meeting the criteria in subsection (1), the Mississippi State Board of Dental Examiners may, in its discretion, issue to the applicant a license to practice dentistry, or dental hygiene, unless grounds for denial of licensure exist as enumerated in Section 73-9-61. Evidence of falsification in the application for licensure through credentialing will result in revocation of such license.

(4) Any applicant applying for a specialty license by credentials must stay within his board recognized specialty and must practice only that specialty within the State of Mississippi. A specialty license holder must hold a general dentistry license prior to obtaining a specialty license.

SECTION 6. Section 73-9-25, Mississippi Code of 1972, is amended as follows:

73-9-25. The regular meeting of the state board of dental examiners shall be held annually at such place, date and time as the board may determine in its discretion, for the purpose of examining applicants for license to practice dentistry and dental hygiene, and continue in session until all applicants for license have been examined and their examinations have been approved or disapproved. The board may meet more often if necessary, in the discretion of the board, at such times and places as it may deem proper for the examination of applicants who may wish to practice dentistry or dental hygiene in this state, to administer makeup examinations, or for the purpose of enforcing the dental laws of the state. * * *

As far as practicable, all examinations, except as to character, shall be upon written questions. Examinations for license to practice dentistry shall be upon the following subjects: anatomy, anesthesiology, biochemistry, community health, dental auxiliary utilization, dental materials science, diagnosis and treatment planning, embryology, endodontics, ethics, growth and development, history, hospital dental service, internal medicine, jurisprudence, microbiology, occlusion, operative dentistry, oral anatomy, oral and maxillofacial surgery, orthodontics and dentofacial orthopedics, oral and maxillofacial pathology, pediatric dentistry, pharmacology, physiology, practice administration, preventive dentistry, prosthodontics-fixed and removable, oral and maxillofacial radiology and roentgenology, as they pertain to dentistry, together with a practical examination in operative and mechanical dentistry. Examinations for license to practice dental hygiene shall cover the subjects taught in the recognized schools of dental hygiene together with such other subjects and practical demonstrations as the board may require.

The state shall furnish necessary equipment for the required practical examinations for dentists and dental hygienists, and properly house and care for same.

SECTION 7. Section 73-9-41, Mississippi Code of 1972, is amended as follows:

73-9-41. (1) No person shall practice, attempt to practice or offer to practice dentistry or dental hygiene within the state without first having been authorized and issued a license by the board; nor shall any person practice, attempt to practice, or offer to practice dentistry or dental hygiene within the state during any period of suspension of his license by the board or after revocation by the board of any license theretofore issued to the offending person.

(2) A person not licensed to practice dentistry under the laws of this state shall not perform any act which would constitute the practice of dentistry or dental hygiene as defined in Sections 73-9-3 and 73-9-5, including, but not limited to, the following: (a) take impressions or casts of the human mouth or teeth, (b) construct or supply dentures without the work authorization or prescription of a person licensed under the laws of this state to practice dentistry, and (c) construct or supply dentures from impressions or casts without the work authorization or prescription of a person licensed under the laws of this state to practice dentistry.

(3) The fact that any person engages in or performs or offers to engage in or performs any of the practices, acts or operations set forth in Section 73-9-3 or Section 73-9-5 is prima facie evidence that such a person is engaged in the practice of dentistry or dental hygiene.

(4) In addition to any other civil remedy or criminal penalty provided for by law, the executive director or the secretary of the board may issue a summons to appear before the board to any person or persons who the executive director or any member of the board has probable cause to believe has violated this section by practicing, attempting to practice, or offering to practice dentistry or dental hygiene without a current, valid license or permit and any necessary witnesses. The summons issued by the board shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The summons shall be served upon the individual personally or by any type of mailing requiring a return receipt and shall include a statement of the charges and an explanation of the manner in which the unlicensed person shall be required to respond to the board.

(5) In proceedings conducted pursuant to subsection (4) above, the board may levy for each and every violation a civil penalty upon any unlicensed person who after a hearing is found to have practiced dentistry or dental hygiene without the benefit of a current, valid license having been issued by the board pursuant to the provisions of this chapter, as follows:

(a) For the first violation, a monetary penalty of not more than Five Hundred Dollars ($500.00).

(b) For the second violation, a monetary penalty of not more than One Thousand Dollars ($1,000.00).

(c) For the third and any subsequent violations, a monetary penalty of not more than Five Thousand Dollars ($5,000.00).

(d) For any violation, the board may assess those reasonable costs that are expended by the board in the investigation and conduct of the hearing as provided in subsection (4) above, including, but not limited to, the cost of process service, court reporters, expert witnesses and other witness expenses paid by the board, and investigators. Appeals from the board's decision may be taken as provided in Section 73-9-65. Any monetary penalty or assessment levied under this section shall be paid to the board by the illegal practitioner upon the expiration of the period allowed for appealing such penalties or may be paid sooner if the illegal practitioner elects. Monetary penalties collected by the board under this section shall be deposited to the credit of the General Fund of the State Treasury. Any monies collected for assessment of costs by the board shall be deposited into the special fund of the board.

(6) No person practicing dentistry or dental hygiene without a current valid license or temporary permit shall have the right to receive any compensation for services so rendered. In addition to any other penalties imposed under this section, any person who practices dentistry or dental hygiene without a license shall return any fees collected for practicing dentistry or dental hygiene and shall be liable for any damages resulting from negligent conduct. The board or any patient shall have the right to enforce the obligation provided in this section.

SECTION 8. Section 73-9-43, Mississippi Code of 1972, is amended as follows:

73-9-43. (1) The secretary shall collect in advance all fees provided for in this chapter as established by the board, not to exceed:

Application for dental license $ 600.00

Application for dental license through credentials 2,500.00

Application for dental specialty license 400.00

Application for dental institutional, teaching or provisional license 600.00

Application for dental hygiene license 400.00

credentials 750.00

Application for dental hygiene institutional,

teaching, or provisional license 400.00

Application for general anesthesia permit 400.00

Application for I.V. sedation permit 400.00

Application for radiology permit 100.00

Annual dental license renewal 300.00

Annual dental specialty license renewal 100.00

Annual dental institutional, teaching or provisional

license renewal 300.00

Annual dental hygiene license renewal 150.00

Annual dental hygiene institutional, teaching, or

provisional license renewal 150.00

Annual general anesthesia * * * permit renewal 100.00

Annual I.V. sedation permit renewal 100.00

Annual radiology permit renewal 75.00

Penalty for delinquent renewal of dental licenses;

First month (plus annual renewal fee) 100.00

Second month (plus annual renewal fee) 150.00

Third month (plus annual renewal fee) 200.00

Penalty for delinquent renewal of dental hygiene

First month (plus annual renewal fee) 50.00

Second month (plus annual renewal fee) 75.00

Third month (plus annual renewal fee) 100.00

Penalty for delinquent renewal of radiology permits:

First month (plus annual renewal fee) 45.00

Second month (plus annual renewal fee) 65.00

Third month (plus annual renewal fee) 75.00

Penalty for nonnotification of change of address 50.00

certification cards 50.00

Duplicate or replacement license or permit 40.00

Certification of licensure status 40.00

Certified copy of license or permit 40.00

Handling fee for nonsufficient funds check 50.00

Requests for database information 300.00

office 100.00

Dental and dental hygiene licensure examination

manuals 50.00

Dental and dental hygiene licensure by

credentials packets 50.00

Laws and/or regulations 50.00

Disciplinary action orders 25.00

Newsletters 20.00

The payment of annual dentist registration fees shall be optional with all dentists over the age of seventy (70) years.

(2) The board may enact and enforce for delinquency in payment for any fees set out in this section a penalty in addition to the fee of an amount up to but not in excess of the fee. An additional fee of an amount equal to the first penalty may be assessed for each thirty (30) days, or part thereof, of delinquency. If any licensed and registered dentist or dental hygienist should be delinquent in payment of registration fees for a period as long as ninety (90) days, such person shall be presumed to be no longer practicing and shall be stricken from the rolls, and in order to practice his or her profession in this state thereafter may, at the discretion of the board, be considered as a new applicant and subject to examination and other licensing requirements as an original applicant.

(3) The secretary shall faithfully account for all monies received by the board. All fees and any other monies received by the board, except monetary penalties collected under Section 73-9-61, shall be deposited in a special fund that is created in the State Treasury and shall be used for the implementation and administration of this chapter when appropriated by the Legislature for such purpose. The monies in the special fund shall be subject to all provisions of the state budget laws that are applicable to special fund agencies, and disbursements from the special fund shall be made by the State Treasurer only upon warrants issued by the State Fiscal Officer upon requisitions signed by the president, secretary or administrative officer of the board. Any interest earned on this special fund shall be credited by the State Treasurer to the fund and shall not be paid into the State General Fund. Any unexpended monies remaining in the special fund at the end of a fiscal year shall not lapse into the State General Fund.

(4) It shall be the duty of the State Auditor to audit the financial affairs of the board, the transactions involving the special fund and the books of the secretary of the board at least once a year in the same manner as for other special fund agencies, and at any time requested to do so by a majority of the board casting their vote for such audit and while in a lawfully called meeting. The report of the State Auditor shall be incorporated in the minute book of the board.

(5) All fees collected from applicants, duplicate licenses, certificates of recommendation and certified copies of licenses shall be distributed among the members of the board in such proportion as to allow the secretary twice the remuneration each of the other seven (7) members receive as their compensation for examining applicants for licensure. Provided, however, that for examining applicants for licensure the secretary shall receive no more than Twenty-four Hundred Dollars ($2400.00) per year and no other member shall receive more than Twelve Hundred Dollars ($1200.00) per year. The receipt of said compensation shall not entitle members of the board to receive or be eligible for any state employee group insurance, retirement or other fringe benefits. Provided further, that any fees or income other than the maximum allowable for examining applicants for licensure as set out above shall be accounted for and may be used as needed in carrying out the provisions of this chapter.

(6) Fees collected from annual registration shall be used to maintain an office adequately staffed insofar as funds are available and provide other services as may be needed for carrying out the powers and duties of the board within the provisions of this chapter. Fees collected from annual registration shall also be used to pay the per diem and defray the expense of members of the board for attendance at meetings other than those for the purpose of examining applicants for licenses. In addition, a portion of the fee charged for annual dentist registration, annual specialty registration, annual dental hygienist registration, and annual institutional, teaching or provisional registration may be used to support a program to aid impaired dentists and/or dental hygienists. The payment of per diem and expense for attending said board meetings shall be in addition to the compensation permitted above for examining applicants for licensure, and the per diem shall not exceed the amount provided in Section 25-3-69.

SECTION 9. Section 73-9-61, Mississippi Code of 1972, is amended as follows:

73-9-61. (1) Upon satisfactory proof, and in accordance with statutory provisions elsewhere set out for such hearings and protecting the rights of accused as well as the public, the State Board of Dental Examiners may deny the issuance or renewal of a license or may revoke or suspend the license of any licensed dentist or dental hygienist practicing in the State of Mississippi, or take any other action in relation to the license as the board may deem proper under the circumstances, for any of the following reasons:

(a) Misrepresentation in obtaining a license, or attempting to obtain, obtaining, attempting to renew or renewing a license or professional credential by making any material misrepresentation, including the signing in his professional capacity any certificate that is known to be false at the time he makes or signs such certificate.

(b) Willful violation of any of the rules or regulations duly promulgated by the board, or of any of the rules or regulations duly promulgated by the appropriate dental licensure agency of another state or jurisdiction.

(c) Being impaired in the ability to practice dentistry or dental hygiene with reasonable skill and safety to patients by reason of illness or use of alcohol, drugs, narcotics, chemicals, or any other type of material or as a result of any mental or physical condition.

(d) Administering, dispensing or prescribing any prescriptive medication or drug * * * outside the course of legitimate professional dental practice.

(e) Being convicted or found guilty of or entering a plea of nolo contendere to, regardless of adjudication, a violation of any federal or state law regulating the possession, distribution or use of any narcotic drug or any drug considered a controlled substance under state or federal law, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.

(f) Practicing incompetently or negligently, regardless of whether there is actual harm to the patient.

(g) Being convicted or found guilty of or entering a plea of nolo contendere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of dentistry or dental hygiene, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.

(h) Being convicted or found guilty of or entering a plea of nolo contendere to, regardless of adjudication, a felony in any jurisdiction, a certified copy of the conviction order or judgment rendered by the trial court being prima facie evidence thereof, notwithstanding the pendency of any appeal.

(i) Delegating professional responsibilities to a person who is not qualified by training, experience or licensure to perform them.

(j) The refusal of a licensing authority of another state or jurisdiction to issue or renew a license, permit or certificate to practice dentistry or dental hygiene in that jurisdiction or the revocation, suspension or other restriction imposed on a license, permit or certificate issued by such licensing authority which prevents or restricts practice in that jurisdiction, a certified copy of the disciplinary order or action taken by the other state or jurisdiction being prima facie evidence thereof, notwithstanding the pendency of any appeal.

(k) Surrender of a license or authorization to practice dentistry or dental hygiene in another state or jurisdiction when the board has reasonable cause to believe that the surrender is made to avoid or in anticipation of a disciplinary action.

(l) Any unprofessional conduct to be determined by the board on a case-by-case basis, which shall include but not be restricted to the following:

(i) Committing any crime involving moral turpitude.

(ii) Practicing deceit or other fraud upon the public.

(iii) Practicing dentistry or dental hygiene under a false or assumed name.

(iv) Advertising that is false, deceptive or misleading.

(v) Announcing a specialized practice shall be considered advertising that tends to deceive or mislead the public unless the dentist announcing as a specialist conforms to other statutory provisions and the duly promulgated rules or regulations of the board pertaining to practice of dentistry in the State of Mississippi.

(m) Failure to provide and maintain reasonable sanitary facilities and conditions or failure to follow board rules regarding infection control.

(n) Committing any act which would constitute sexual misconduct upon a patient or upon ancillary staff. For purposes of this subsection, the term sexual misconduct means:

(i) Use of the licensee-patient relationship to engage or attempt to engage the patient in sexual activity; or

(ii) Conduct of a licensee that is intended to intimidate, coerce, influence or trick any person employed by or for the licensee in a dental practice or educational setting for the purpose of engaging in sexual activity or activity intended for the sexual gratification of the licensee.

(o) Violation of a lawful order of the board previously entered in a disciplinary or licensure hearing; failure to cooperate with any lawful request or investigation by the board; or failure to comply with a lawfully issued subpoena of the board.

(p) Willful, obstinate * * * and continuing refusal to cooperate with the board in observing its rules and regulations in promptly paying all legal license or other fees required by law.

(q) Practicing dentistry or dental hygiene while such person's license is suspended.

(2) In lieu of revocation of a license as provided for above, the board may suspend the license of the offending dentist or dental hygienist, suspend the sedation permit of the offending dentist, or take any other action in relation to his license as the board may deem proper under the circumstances.

(3) When a license to practice dentistry or dental hygiene is revoked or suspended by the board, the board may, in its discretion, stay such revocation or suspension and simultaneously place the licensee on probation upon the condition that such licensee shall not violate the laws of the State of Mississippi pertaining to the practice of dentistry or dental hygiene and shall not violate the rules and regulations of the board and shall not violate any terms in relation to his license as may be set by the board.

(4) In a proceeding conducted under this section by the board for the denial, revocation or suspension of a license to practice dentistry or dental hygiene, the board shall have the power and authority for the grounds stated for such denial, revocation or suspension, and in addition thereto or in lieu of such denial, revocation or suspension may assess and levy upon any person licensed to practice dentistry or dental hygiene in the State of Mississippi, a monetary penalty, as follows:

(a) For the first violation of any of subparagraph (a), (b), (c), (d), * * * (f), (i), (l), (m), (n), (o) or (q) of subsection (1) of this section, a monetary penalty of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00).

(b) For the second violation of any of subparagraph (a), (b), (c), (d), * * * (f), (i), (l), (m), (n), (o) or (q) of subsection (1) of this section, a monetary penalty of not less than One Hundred Dollars ($100.00) nor more than One Thousand Dollars ($1,000.00).

(c) For the third and any subsequent violation of any of subparagraph (a), (b), (c), (d), * * * (f), (i), (l), (m), (n), (o) or (q) of subsection (1) of this section, a monetary penalty of not less than Five Hundred Dollars ($500.00) and not more than Five Thousand Dollars ($5,000.00).

(d) For any violation of any of subparagraphs (a) through (q) of subsection (1) of this section, those reasonable costs that are expended by the board in the investigation and conduct of a proceeding for licensure revocation or suspension, including but not limited to the cost of process service, court reporters, expert witnesses and investigators.

(5) The power and authority of the board to assess and levy such monetary penalties hereunder shall not be affected or diminished by any other proceeding, civil or criminal, concerning the same violation or violations except as provided in this section.

(6) A licensee shall have the right of appeal from the assessment and levy of a monetary penalty as provided in this section under the same conditions as a right of appeal is provided elsewhere for appeals from an adverse ruling, order or decision of the board.

(7) Any monetary penalty assessed and levied under this section shall not take effect until after the time for appeal shall have expired. In the event of an appeal, such appeal shall act as a supersedeas.

(8) A monetary penalty assessed and levied under this section shall be paid to the board by the licensee upon the expiration of the period allowed for appeal of such penalties under this section or may be paid sooner if the licensee elects. With the exception of subsection (4)(d) of this section, monetary penalties collected by the board under this section shall be deposited to the credit of the General Fund of the State Treasury. Any monies collected by the board under subsection (4)(d) of this section shall be deposited into the special fund operating account of the board.

(9) When payment of a monetary penalty assessed and levied by the board against a licensee in accordance with this section is not paid by the licensee when due under this section, the board shall have power to institute and maintain proceedings in its name for enforcement of payment in the chancery court of the county and judicial district of residence of the licensee, and if the licensee be a nonresident of the State of Mississippi, such proceedings shall be in the Chancery Court of the First Judicial District of Hinds County, Mississippi.

(10) In addition to the reasons specified in subsection (1) of this section, the board shall be authorized to suspend the license of any licensee for being out of compliance with an order for support, as defined in Section 93-11-153. The procedure for suspension of a license for being out of compliance with an order for support, and the procedure for the reissuance or reinstatement of a license suspended for that purpose, and the payment of any fees for the reissuance or reinstatement of a license suspended for that purpose, shall be governed by Section 93-11-157 or 93-11-163, as the case may be. If there is any conflict between any provision of Section 93-11-157 or 93-11-163 and any provision of this chapter, the provisions of Section 93-11-157 or 93-11-163, as the case may be, shall control.

SECTION 10. Section 73-9-63, Mississippi Code of 1972, is amended as follows:

73-9-63. A complaint may be filed with the secretary or executive director of the board, * * * by any person charging a licensed dentist or dental hygienist with the commission of any of the offenses enumerated in the preceding section. Such complaint shall be in writing and signed by the accuser, or accusers. If upon review of the complaint, the board determines that there is not substantial justification to believe that the accused dentist or dental hygienist has committed any of the offenses enumerated in the preceding section, it may dismiss the complaint * * *. In the event of a dismissal, the person filing the complaint and the accused dentist or dental hygienist shall be given written notice of the board's determination. If the board determines there is reasonable cause to believe the accused has committed the offenses, and a hearing should be held to determine the validity of the complaint, the executive director of the board shall set a day for a hearing, and shall transmit to the accused a true copy of all papers filed with him, relating to such complaint, and shall notify the accused that on the day fixed for hearing he may appear and show cause if any why his or her license to practice dentistry or dental hygiene in the state should not be revoked or have other disciplinary action taken against it. The board may, by regulation, establish an investigative panel consisting of at least two (2) people, one (1) of whom shall be a board member, to review complaints to determine the existence of probable cause and whether such complaints should proceed to formal hearing.

Nothing in this section shall prevent the board from determining that it should investigate a licensee without a signed complaint provided that a prior determination is made that probable cause exists that a violation of this chapter may have occurred.

For the purpose of such hearings or investigation of complaints, the board * * * is * * * empowered to require the attendance of witnesses, reimburse witnesses for necessary expenses and mileage incurred * * *, subpoena documents and records, employ and compensate expert witnesses, administer oaths, and hear testimony, either oral or documentary, for and against the accused. * * * Hearings shall be conducted by a majority of the members of the board. A record of the hearing shall be made which shall consist * * * of all testimony received and all documents and other material introduced. If after such hearing the board shall be satisfied that the accused has been guilty of the offense charged in the accusation, it shall thereupon, without further notice, order such disciplinary action as it deems proper.

SECTION 11. Sections 11 through 19 of this act shall be known as the "Mississippi Disabled Dentist Law."

SECTION 12. The license of any dentist or dental hygienist in this state shall be subject to restriction, suspension or revocation, as hereinafter provided, in case of inability of the licensee to practice dentistry or dental hygiene with reasonable skill or safety to patients by reason of one or more of the following:

(a) Mental illness;

(b) Physical illness, including, but not limited to, deterioration through the aging process, or loss of motor skill;

(c) Excessive use or abuse of drugs, including alcohol.

SECTION 13. (1) If the State Board of Dental Examiners has reasonable cause to believe that a dentist or dental hygienist licensed to practice dentistry or dental hygiene in this state is unable to practice with reasonable skill and safety to patients because of a condition described in Section 12, such board of dental examiners shall cause an examination of such dentist or dental hygienist to be made as described in subsection (2) of this section and shall, following such examination, take appropriate action within the provisions of Sections 11 through 19.

(2) Examination of a dentist or dental hygienist under this section shall be conducted by an examining committee designated by the board. Such examining committee shall be composed of at least two (2) practicing dentists, three (3) practicing physicians, and shall include at least one (1) psychiatrist if a question of mental illness is involved.

SECTION 14. (1) The examining committee assigned to examine a dentist or dental hygienist pursuant to referral by the board under Section 13 shall conduct an examination of such dentist or dental hygienist for the purpose of determining his fitness to practice dentistry or dental hygiene with reasonable skill and safety to patients, either on a restricted or unrestricted basis, and shall report its findings and recommendations to the board. The committee shall order the dentist or dental hygienist to appear before the committee for examination and give him ten (10) days' notice of the time and place of the examination, together with a statement of the cause for such examination. Such notice shall be served upon the dentist or dental hygienist either personally or by registered or certified mail with return receipt requested.

(2) If the examining committee, in its discretion, should deem an independent mental or physical examination of the dentist or dental hygienist necessary to its determination of the fitness of the dentist or dental hygienist to practice, the committee shall order the dentist or dental hygienist to submit to such examination. Any person licensed to practice dentistry or dental hygiene in this state shall be deemed to have waived all objections to the admissibility of the examining committee's report in any proceedings before the board under Sections 11 through 19 on the grounds of privileged communication. Any dentist or dental hygienist ordered to an examination before the committee under this subsection shall be entitled to an independent mental or physical examination if he makes a request therefor.

(3) Any dentist or dental hygienist who submits to a diagnostic mental or physical examination as ordered by the examining committee shall have a right to designate another physician to be present at the examination and make an independent report to the board.

(4) Failure of a dentist or dental hygienist to comply with a committee order under subsection (1) to appear before it for examination or to submit to mental or physical examination under subsection (2) shall be reported by the committee to the board, and unless due to circumstances beyond the control of the dentist or dental hygienist, shall be grounds for suspension by the board of his license to practice dentistry or dental hygiene in this state until such time as such dentist or dental hygienist has complied with the order of the committee.

(5) The examining committee may inspect patient records in accordance with the rules and regulations duly promulgated by the board of dental examiners.

SECTION 15. A dentist or dental hygienist may request in writing to the board a restriction of his license to practice dentistry or dental hygiene. The board may grant such request for restriction and shall have authority, if it deems appropriate, to attach conditions to the licensure of the dentist or dental hygienist to practice dentistry or dental hygiene within specified limitations, and waive the commencement of any proceeding under Section 17. Removal of a voluntary restriction on licensure to practice dentistry or dental hygiene shall be subject to the procedure for reinstatement of license in Section 18.

SECTION 16. (1) The examining committee shall report to the board its findings on the examination of the dentist or dental hygienist under Section 14, the determination of the committee as to the fitness of the dentist or dental hygienist to engage in the practice of dentistry or dental hygiene with reasonable skill and safety to patients, either on a restricted or unrestricted basis, and any management that the committee may recommend. Such recommendation by the committee shall be advisory only and shall not be binding on the board.

(2) The board may accept or reject the recommendation of the examining committee to permit a dentist or dental hygienist to continue to practice with or without any restriction on his license to practice dentistry or dental hygiene, or may refer the matter back to the examining committee for further examination and report thereon.

(3) In the absence of a voluntary agreement by a dentist or dental hygienist under Section 15 for restriction of the licensure of such dentist or dental hygienist to practice dentistry or dental hygiene, any dentist or dental hygienist shall be entitled to a hearing in formal proceedings before the board and a determination on the evidence as to whether or not restriction, suspension or revocation of licensure shall be imposed.

SECTION 17. (1) The board may proceed against a dentist or dental hygienist under Sections 11 through 19 by serving upon such dentist or dental hygienist at least fifteen (15) days' notice of a time and place fixed for a hearing, together with copies of the examining committee's report and diagnosis. Such notice and reports shall be served upon the dentist or dental hygienist either personally or by registered or certified mail with return receipt requested.

(2) At the hearing the dentist or dental hygienist shall have the right to be present, to be represented by counsel, to produce witnesses or evidence in his behalf, to cross-examine witnesses, and to have subpoenas issued by the board.

(3) At the conclusion of the hearing, the board shall make a determination of the merits and may issue an order imposing one or more of the following:

(a) Make a recommendation that the dentist or dental hygienist submit to the care, counseling or treatment by physicians acceptable to the board.

(b) Suspend or restrict the license to practice dentistry or dental hygiene for the duration of his impairment.

(c) Revoke the license of the dentist or dental hygienist.

(4) The board may temporarily suspend the license of any dentist or dental hygienist without a hearing, simultaneously with the institution of proceedings for a hearing under this section, if it finds that the evidence in support of the examining committee's determination is clear, competent and unequivocal and that his continuation in practice would constitute an imminent danger to public health and safety.

(5) Neither the record of the proceedings nor any order entered against a dentist or dental hygienist may be used against him in any other legal proceedings except upon judicial review as provided herein.

SECTION 18. (1) A dentist or dental hygienist whose licensure has been restricted, suspended or revoked under Sections 11 through 17, voluntarily or by action of the board, shall have a right, at reasonable intervals, to petition for reinstatement of his license and to demonstrate that he can resume the competent practice of dentistry or dental hygiene with reasonable skill and safety to patients. Such petition shall be made in writing and on a form prescribed by the board. Action of the board on such petition shall be initiated by referral to and examination by the examining committee pursuant to the provisions of Sections 13 and 14. The board may, upon written recommendation of the examining committee, restore the licensure of the dentist or dental hygienist on a general or limited basis or institute a proceeding pursuant to Section 17 for the determination of the fitness of the dentist or dental hygienist to resume his practice.

(2) All orders of the board entered under Sections 17(3) and 17(4) shall be subject to judicial review by appeal to the chancery court of the county of the residence of the dentist or dental hygienist involved against whom the order is rendered, within thirty (30) days following the date of entry of the order, the appeal to be taken and perfected in the same manner as provided in Section 73-9-65.

SECTION 19. There shall be no liability on the part of and no action for damages against:

(a) Any member of the examining committee or the board for any action undertaken or performed by such member within the scope of the functions of such committee or the board under Sections 11 through 18 when acting without malice and in the reasonable belief that the action taken by him is warranted; or

(b) Any person providing information to the committee or to the board without malice in the reasonable belief that such information is accurate.

SECTION 20. This act shall take effect and be in force from and after July 1, 2000.