The Board received a written comment from the University of Texas Medical Branch, which provides dental services to the Texas Department of Criminal Justice and the Texas Youth Commission. Dentists and dental hygienists employed in correctional institutions may provide dental treatment at several facilities and the requirement to display duplicate registration certificates could place a financial burden on the agency, which would have to pay the fee for duplicate certificates.

The Board is sensitive to the unique circumstances that dentists and dental hygienists who work in an institutional setting face, but the Board is bound by the new enabling legislation. Such a change is within the province of the State Legislature. The Board suggests, in response, that dentists and dental hygienists could carry their registration certificates with them, to display in each location where they practice. The language of the rule will not be changed.

New Subchapter B, Sanitation and Infection Control covers new rules 108.20 through 108.25. The new Subchapter is made up of rules previously found in repealed Chapter 109, Conduct, Subchapters H and Q, which are discussed as follows.

Section 108.20, Purpose, is a repeat of repealed rule 109.220 with no changes except that a statutory reference has been changed to refer to the appropriate section of the Occupations Code that became effective September 1, 1999. The rule sets forth the purpose of the subchapter, to establish proper infection control procedures. That purpose has not changed and the need to state it continues.

No comments were received regarding adoption of the proposal.

Section 108.21, Requirement, is a repeat of repealed rule 109.131 with non-substantive language changes. The rule requires dentists to maintain clean and sanitary conditions in their offices. Superfluous language concerning filth, trash and debris was dropped from this rule. The intent of the rule remains valid and the Board proposes that it continues to exist.

No comments were received regarding adoption of the proposal.

Section 108.22, Access to Dental Office, repeats verbatim the language of the repealed rule 109.132, effective February 5, 1999, and which was repealed as part of the rule review process, to be supplanted by new rule 108.22. No comments were received when former rule 109.132 was published for comment. Written comments concerning rule 108.22 have been received from a representative of the University of Texas Medical Branch, which provides dental services to the Texas Department of Criminal Justice and the Texas Youth Commission. The purpose of the rule clarifies that an unsanitary dental office may present a threat to the public health and welfare. Accordingly, refusal to grant access to Board investigators acting pursuant to an allegation of unsanitary conditions is considered serious enough to call into play the provisions of the law that allow a temporary suspension of a dental license.

A dentist working in a correctional institution might be held accountable for refusing to grant access to an institutional dental facility which is subject to security regulations and restrictions to access of the institution. The Board recognizes the problems attendant to maintaining security in an institutional setting, and Board investigators are instructed to work with authorities when investigating complaints occurring on institutional premises. The rule is intended to regulate the conduct of individual dentists not other state agencies. A dentist who is willing to grant access to dental facilities but encounters difficulty in complying because of security considerations of the correctional institution need not fear reprisal from the Board. The Board is of the opinion that the language of the rule is reasonable and should not be changed.

Section 108.23, Definitions, is a repeat of repealed rule 109.221 with minor non-substantive language changes. The Board has determined that the reasons for initially adopting the language and intent of repealed rule 109.221 still exist and it is supplanted by new rule 108.23.

No comments were received regarding adoption of the proposal.

Section 108.24, Required Sterilization and Disinfection. The language of this rule is taken verbatim from repealed rule 109.222, Required Sterilization and Disinfection. The Board has determined that the language and intent should be continued unchanged in new rule 108.24.

No comments were received regarding adoption of the proposal.

Section 108.25, Dental Health Care Workers. Subsections (a) and (b) of this rule are taken verbatim from subsections (a) and (b) of repealed rule 109.223, Dental Health Care Workers. Subsections (c), (d) and (e) of Rule 109.223 are deleted on the basis of Attorney General Opinion DM-136 which held that adoption by the State Board of Dental Examiners of these sections was not authorized by the Health and Safety Code §85.204 et.seq., 1991. A new subsection (c) is added requiring a dental health care worker who knows he/she is HbeAg positive to report his/her status to an expert review panel pursuant to THSC §85.204, 1991. Further, repealed rule 109.223(f), now rule 108.25(d) is amended to require dental health care workers who are HbeAg positive to notify prospective patients of that status and to get patient consent before performing an exposure-prone procedure. The new language is a more clear statement of requirements.

No comments were received regarding adoption of the proposal.

New Subchapter C, Anesthesia and Anesthetic Agents which covers rules 108.30 through 108.34 replaces repealed rules 109.171 through 109.175. With the exception of Rule 108.32, Minimum Standard of Care, Anesthesia, discussed in detail below, the rules in this Subchapter are repeated verbatim from repealed rules 109.171 through 109.175. The agency adopted amendments to all the rules in September, 1999 after several public hearings and over two years of discussion. The Board has determined that the reasons for initially adopting the language and intent of these repealed rules continue to exist and is supplanted in the new rules 108.30 through 108.34.

Section 108.30, Effective Date, is a verbatim repeat of repealed rule 109.171, Effective Date.

No comments were received regarding adoption of the proposal.

Section 108.31, Definitions, is a verbatim repeat of repealed rule 109.172, Definitions.

No comments were received regarding adoption of the proposal.

Section 108.32, Minimum Standard of Care, Anesthesia, is changed from repealed rule 109.173, Minimum Standard of Care, by adding the word Anesthesia to the title and by changing the introductory paragraph to limit the reach of the rule to dentists who utilize anesthesia or anesthetic agents. The prior rule by its terms affected all dentists. The remainder of the rule is a verbatim repeat of repealed rule 109.173.

No comments were received regarding adoption of the proposal.

Section 108.33, Sedation/Anesthesia Permit, is a verbatim repeat of repealed rule 109.174.

No comments were received regarding adoption of the proposal.

Section 108.34, Permit Requirements and Clinical Provisions, is a verbatim repeat of repealed rule 109.175.

No comments were received regarding adoption of the proposal.

Section 108.35, Authority to Demonstrate Anesthesia, is a repeat of repealed rule 109.176 with minor language changes. The effect of the rule is unchanged in that clinical demonstrations of sedative/anesthetic techniques must be approved by the Board except those provided by a recognized school of dentistry. The Board has determined that the reasons for initially adopting the language and intent of repealed rule 109.176 continues to exist and it is supplanted by new rule 108.35.

No comments were received regarding adoption of the proposal.

Subchapter D, Mobile Dental Facilities contains all new rules. Repealed rules addressing Mobile or Moveable Offices, rules 109.151 through 109.155 affected operations provided on a "no fee" basis required prior approval in thirty day increments and required prior designation of all locations to be visited.

The new rules require registration for a permit for all mobile and portable dental operations unless an exception is provided in the rules. Since the current rules apply only to mobile operations where no fee is charged and since almost all dental operations are provided in exchange for a fee paid by Medicaid or other governmental programs, there are no rules affecting most mobile and portable operations. As a result most mobile and portable facilities providing dental services in Texas are doing so without having provided any information to the Board concerning operations. Thus, when the Board receives inquiries from legislators, local officials, other state agencies or the public regarding any mobile or portable dental operations it is not in a position to provide reliable information. Of great concern to the Board is whether the services are provided in a manner to meet standard of care requirements, whether arrangements have been made for follow-up care, especially in emergency situations, and whether records of treatment provided will be available to the patients. It is to meet theses concerns that the Board proposed new Subchapter D, which consists of four rules. They are:

Section 108.40, Permit Required, provides that mobile and portable dental operations must be permitted and provides five exception categories.

Section 108.41, Definitions, defines terms needed to make rules clear.

Section 108.42 Obtaining a Permit

Section 108.43, Operating Requirements for Permitted Mobile Dental Facilities or Portable Dental Units describes operating and reporting requirements.

Changes were made to rules as published for purposes of clarification, even though there were no comments on those points. Rule 108.40, Permit Requirement, at subsection (a) was amended to add an effective date of September 1, 2001 for the rules. Rule 108.42(a) was also amended to replace a reference to board rules with a reference to the Dental Practice Act, which is a more appropriate reference. Also, the words "or educational" was added to the last sentence of subsection (a) to make it clear that one permit fee will be required of governmental and educational entities.

A number of written comments were received and a number of individuals requested a public hearing to present their comments. The Board conducted a public hearing on November 10, 2000. Comments made at the hearing will be addressed first.

Appearing at the public hearing were representatives of the Texas Dental Association, Texas Academy of General Dentistry, University of Texas Health Science Center, San Antonio, San Antonio Dental Society, Dentists Who Care, and National Heritage Insurance Corporation. Also, six persons appeared on their own behalf.

Three speakers addressed the Board and suggested that rule 108.40 should be amended to include an exception to allow a dentist to take equipment to another dentist's office and provide dental services without having to first obtain a permit under the rule. At that point staff circulated proposed changes that would address this issue. The speakers reviewed the language and agreed that it addressed their concerns. As a result only the representatives from the Texas Dental Association, Dentists Who Care, and University of Texas Health Science Center, San Antonio chose to speak as they had other concerns; all the remainder of those who appeared did not speak as their concerns had been addressed.

The Board agrees that the concerns expressed by the speakers and by those who made written comments on this point are well taken. Services provided in the office of a licensed dentist do not pose the risks that the Board is addressing by adoption of these rules. Accordingly, the rules as published are amended as follows:

Section 108.40(5) the term "only" is deleted and the section now reads "anesthesia/sedation services are provided and the licensee is permitted to provide portable anesthesia service under the provisions of Rule 108.33 of this title (relating to Sedation/Anesthesia Permit); or,".

Paragraph (6) is added to read "the service is provided in an office of another licensed dentist."

Section 108.41(2) is amended by deleting the phrase "other dentists' offices", to read "Portable Dental Unit - any non-facility in which dental equipment, utilized in the practice of dentistry, is transported to and utilized on a temporary basis at an out-of-office location including, but not limited to, patients' homes, schools, nursing homes, or other institutions."

Next a representative of Dentists Who Care spoke and raised two concerns. The first was that Dentists Who Care, which is a non-profit organization that provides dental care through a mobile van using area dentists who volunteer their time may not be an appropriate entity to seek a mobile permit. The rules contemplate that either licensed dentists or organizations by which dentists legally may be employed must obtain a permit. Dentists Who Care is not such an organization; it does not hire dentists, and as the rules are proposed there is no method for the organization to obtain a permit. Since the dentists who operate the van do so on a voluntary basis it would not be reasonable to require each of them to obtain permits. The Board in discussing the matter agreed that the rules should be amended to allow the Board to consider special situations such as that of Dentists Who Care and when appropriate to issue a permit. Accordingly the proposed rules are amended. Rule 108.41(3) is amended by adding the phrase, "or an organization not otherwise included herein that demonstrates to the SBDE that it is an appropriate entity to provide mobile or portable dental services." Rule 108.42 is amended by including the phrase, "or other organizations as defined by Rule 108.41(3) of this title (relating to Definitions ) and approved by the SBDE."

The Dentists Who Care representative also raised a concern about the amount of paper work these rules would require. He pointed out that under the rules, written approval from all government units such as counties and cities in which the mobile unit will provide services would be required. The rules require that applicants state in writing that they are in compliance with all applicable governmental requirements. Even though there is some burden imposed on permittees, it is not so heavy as to require permittees to appear before all government units in which they may operate to obtain permits especially to comply with these rules. For purposes of obtaining a permit the SBDE will accept the applicant's statement of compliance.

Next, a representative of the University of Texas Health Science Center, San Antonio spoke and repeated concerns raised in written comments. Those comments will be addressed below. Finally, a representative of the Texas Dental Association spoke and in general terms praised the rules and the efforts of the State Board of Dental Examiners.

Written comments were filed by four individuals who all requested that an exception be added to allow dentists to provide treatment in other dentists' offices. Those requests have been met as described above. One commenter also pointed out that reporting requirements for obtaining the permits are onerous. The proposed rules included a requirement for quarterly reporting by all permittees setting forth all locations served and the dates, the number of patients served and the types and quantity of services provided. The adopted rules require annual reporting rather than quarterly of all the matters set out above. Further, the Board is of the opinion that requirements for obtaining a permit for most applicants (see discussion below for governmental and educational entities) should be maintained. Permitting and reporting requirements are maintained in order for the Board to have some assurance that concerns set forth at the beginning of this justification are met. Because mobile and portable dental operations are transient in nature and there is only limited contact with patients there is no longstanding and continuing doctor-patient relationship and there is a strong possibility that a sense of accountability may be reduced or even non-existent in rare cases. The Board must provide some mechanism to maintain such accountability, permitting and reporting requirements are intended to fill that need.

Written comments were filed by San Antonio Metro Health District, University of Texas Health Science Center, San Antonio, Texas Department of Health, Texas Academy of General Dentistry, Dallas County Dental Society, University of Texas Health Science Center, Houston, and San Antonio District Dental facility urging an exemption for dentists practicing in other dentists' offices, objecting to quarterly reporting requirements and objecting to requirements for permitting, all of which have been addressed above. Further, the educational and governmental entities requested that they either be exempted from the rules or that requirements for them be adjusted concerning permitting fees, permitting requirements and reporting requirements. The Board is of the opinion that such organizations should not be exempt from permitting requirements. The rules already address the concern about the negative impact that permitting fees could have on organizations that operate multiple mobile and portable facilities. They provide that governmental and educational entities may obtain one permit for all their vans and facilities. Even though the amount of the permitting fee has not been set at this time, it will be in an amount intended to cover administrative costs and will be minimal. It, however, does agree that the accountability issues discussed above do not apply to them. Therefore rules 108.42 and 108.43 are amended to reduce permitting and operating requirements for governmental and educational entities. The substantive effect of the changes is to reduce permitting and reporting requirements. Now governmental and educational entities must meet very limited permitting and operating requirements while all other permittees must continue to meet such requirements set forth in the rules as proposed, except that as noted above annual rather than quarterly reports are required. To accomplish this a structural change was required. Rather than detailing the changes here the reader is referred to the rules themselves.

New Subchapter E, Business Promotion covers new rules 108.50 through 108.61 and deals with efforts to obtain business, including advertising, professional announcements and referral services. The former rules addressing these subject matters were found in several subchapters of the now repealed Chapter 109. New subchapter E represents an effort to reorganize and update the language previously found in these repealed rules and to reflect the realities of modern-day business practices.

Subsection (a) announces that purpose. Subsection (b) is based on the American Dental Association's guidelines for ethical behavior.

Section 108.50, Objective of Rules, serves as an introduction to the subchapter. Subsection (a) announces the purpose of the rules. Subsection (b) is based on the American Dental Association's Guidelines for Ethical Behavior.

No comments were received regarding adoption of the proposal.