The State Board of Dental Examiners proposes new Chapter 108, Professional Conduct that includes Subchapter A, Professional Responsibility, §§108.1 through 108.11, Subchapter B, Sanitation and Infection Control, §§108.20 through 108.25, Subchapter C, Anesthesia and Anesthetic Agents, §§108.30 through 108.35, Subchapter D, Mobile Dental Facilities, §§108.40 through 108.43, Subchapter E, Business Promotion, §§108.50 through 108.61, and Subchapter F, Contractual Agreements, §§108.70 and 108.71. Chapter 108, Professional Conduct, is proposed as a replacement for Chapter 109, Conduct, which is proposed for repeal as part of the agency's rules review process. A complete explanation of the disposition of each rule in Chapter 108 follows and an explanation of the disposition of each rule in Chapter 109 can be found in the Proposed Rules section of the Texas Register .

New Subchapter A, Professional Responsibility covers new §§108.1 through 108.11.

Section 108.1, Professional Responsibility, language of this rule was formerly found in §109.103, which fixed professional responsibility in the provision of dental services and enumerated a list of prohibited actions. The preamble was modified by adding an admonition for honesty, integrity and fair dealing. The Board elects to retain the language found in paragraphs (1) through (6), because that language continues to serve a useful purpose in the regulation of a dentist's conduct. Paragraph (7) is amended to conform with the intent of the language found in the preamble. The words "without first" are substituted for the words "only after" in §109.103(7). The words "but are not limited to" have been eliminated because the words "shall include" make them unnecessary.

Section 108.2, Fair Dealing, language was derived from former §§109.105, 109.122, 109.141 and 109.211. Those four rules dealt with the same subject matter and the Board decided it would be more efficient to combine them into one rule. The language of §108.2 (a) adds the words "...of the proposed treatment, and any reasonable alternatives, in a manner that allows the patient to become involved in treatment decisions" to the preamble, which was found in §109.122. This is based on the American Dental Association's guidelines for ethical behavior. The language of §108.2 (b) derived from former §109.122 and is repeated verbatim. The language of §108.2 (c) repeats that found in former §109.141 (b). Subsection (d) of §108.2 repeats the language of former §109.141 (a), with the exception of the first sentence of that section. The language of §108.2 (e) derives from §101.203 of the Texas Occupations Code and §109.211(17), which defines "overcharging." Section 108.2 (f) repeats verbatim the language of former §109.105 and states that a dentist cannot ask an auxiliary to perform a procedure that he or she cannot perform. The Board has decided that the language found in former §§109.105, 109.122, 109.141 and 109.211 are still applicable, with minor changes.

Section 108.3, Consumer Information, repeats almost verbatim the language found in former §109.10. The former paragraph(4) of §109.10 has been eliminated because it is duplicitous verbiage and unnecessary. The former paragraph (5) is now paragraph (4) of §108.3. The Board chooses to retain the language of §109.10, with the noted exception, for the benefit of consumers.

Section 108.4, Names of Dentists, combines provisions of former §§109.2, 109.6, 109.7, 109.201 and §259.002 and §259.003 of the Texas Occupations Code. Section 259.002 requires that the names of, degrees received by and school attended by each dentist in a dental office shall be listed. This requirement is repeated in Subsection (a) of §108.4. Subsection (b) combines language of §259.003, Occupations Code and subsection (b) of former §109.2. Subsection (c) derives from former §109.6 (a) and requires that only the name(s) of a dentist(s) actually practicing at a particular location shall be displayed there. Subsection (d) derives from former §109.6 (a), second sentence. The third sentence of that rule is deleted, because it places an open-ended burden on dentists who have left that location. Subsection (e) derives from former §109.6 (b), with minor grammatical changes. Subsection (f) derives from former §109.81, with a change in the language from "employing dentist" to "supervising dentist," to reflect a change in the practice requirements for dental hygienists.

Section 108.5, Termination of Relationship, subject matter of this rule was formerly addressed in §109.121. The rule has been expanded to make it more clear that a patient's oral health should not be jeopardized by termination of the dentist-patient relationship. Detailed instructions for termination are provided, in an effort to prevent confusion. The Board found that it was called upon frequently to explain the meaning of former §109.121, both to patients and dentists. The Board has decided that the new rule will better represent the best interests of dentists and their patients.

Section 108.6, Report of Patient Death or Injury Requiring Hospitalization, replaces former §109.177, which was difficult to interpret, because of ambiguous language. The new rule is an attempt to clarify the circumstances under which a dentist must report an adverse incident arising as a consequence of dental treatment. Under the old rule, any time a dental patient died, a dentist who had rendered dental services to that person had to report the death, no matter how remote in time or circumstances from the dental treatment. Paragraph (1) makes it clear that the death of a dental patient must be reported if the death was a consequence of the receipt of dental services from the reporting dentist. Likewise, the conditions under which an injury to a dental patient must be reported have been clarified, in paragraph (2). If adopted, only an injury requiring admission to a hospital must be reported, if the injury was a consequence of receiving dental services from the reporting dentist. The new rule also eliminates a confusing, unclear definition of "morbidity." All reports of death or injury will be evaluated by the Enforcement Committee, to determine whether the circumstances should be investigated by the Board.

Section 108.7, Minimum Standard of Care, General, repeats verbatim the language of the former §109.173. The intent of the rule is to establish a minimum standard of care for all dentists practicing in Texas. Because of the location of former §109.173 in Subchapter L, Anesthesia and Anesthetic Agents, many dentists were unaware of the rule, because they do not hold anesthesia permits. Location of the new rule in new Subchapter A, Professional Responsibility, makes it clearer that the standard applies to all dentists. Similar language is found in another rule in new Subchapter C, Anesthesia and Anesthetic Agents, which the Board has chosen to retain.

Section 108.8, Records of the Dentist. The intent of this rule was found in former §109.144, which has been expanded by the new rule. Subsection (a) provides a definition of "adequate records" and includes a listing of documents that can be considered dental records. Subsection (c) modifies the language of former §109.144 (d), by requiring compliance with DEA and DPS prescription programs. Subsection (d) repeats former §109.144 (e) verbatim and is retained by the Board. Section 108.8 (e) combines language from former §109.144 (b) and (c), with some minor changes for grammatical consistency. The new subsection (e) also changes language found in former §109.144 (b) to state that original records may be transferred to another Texas dentist "...who will provide treatment to the patient." Subsection (f) modifies former §109.144 (c) to explain what a dentist who leaves a practice or a location should do with the dental records. The new subsection also clarifies the requirements for transfer of records in an employment situation. Subsection (g) expands on former §109.144 (a), by stating that the newly enacted privilege against disclosure, for protection of dental patients' privacy, does not apply to a request for records by the Board in a disciplinary investigation. Subsection (h) repeats the language of former § 109.144 (f), with the addition of a sentence stating that copies of a patient's records may not be withheld because of a past due account.

Section 108.9, Dishonorable Conduct, provides that the listed conduct constitutes a violation of the law. It is derived from former §109.211 which, by contrast, merely defined the types of conduct that could be considered dishonorable. Paragraph (1) combines the language found in former paragraphs (2) and (3). Paragraph (2) modifies former paragraph (4) and states a clearly identifiable course of conduct related to the provision of dental services that constitutes a violation. Paragraph (3) derives from former paragraph (8) and provides that a dentist is prohibited from grossly over administering drugs as well as grossly over prescribing and dispensing. Paragraph (4) derives from former paragraph (9) but changes the former language from "...or not for a dental or maxillofacial surgery problem" to "...or not for a dental purpose." The words "dental purpose" encompass "maxillofacial surgery problem." Paragraph (5) repeats former paragraph (10), except that the new section uses the active voice. Paragraph (6) addresses conduct that might not be capable of precise classification by referring to the statutes or rules but is, nonetheless, accepted by the profession as dishonorable. An example might be inappropriate sexual contact with a dental patient. This language replaces paragraph (1) of former §109.211. Paragraph (1) of former §109.211 is unnecessary, in view of the language contained in new paragraph (5). Former paragraph (6) is addressed in §251.003 and §256.001 of the Occupations Code and is repealed as unnecessary. Former paragraph (7) is repealed as unnecessary, because its subject matter is covered in §§102.001 through 102.011 and 259.008 of the Occupations Code. The intent of former paragraphs (11), (12) and (13) of former §109.211 is addressed in new §108.1 (1) and is repealed as unnecessary. Former paragraph (14) is addressed in Chapter 53 of the Occupations Code, as well as §§263.001, 263.002 and 101.8. Former paragraph (15) is repealed as unnecessary because its intent is contained in §251.003 of the Occupations Code and new §108.70, formerly §109.500. Former paragraph (16) and (17) are repealed because their intent is found in the language of new §108.2 (e).

Section 108.10, Educational or Other Requirement, derives from former §109.181 and is repeated verbatim, except that the words "...and must not have been convicted of any felony offense during the term of retired status." have been deleted. This language is unnecessary because such a situation is addressed by Chapter 53 of the Occupations Code, as well as §§263.001, 263.002 and 101.8, pertaining to the effect of a felony conviction.

Section 108.11, Display of Registration. Senate Bill 964, §6, effective September 1, 1999, requires that dentists and dental hygienists display a current registration certificate in each office where dental services are provided by them. This legislation amended former Article 4548d, now §256.103 of the Occupations Code, which required display of a license by a dentist. This new rule implements the recent legislation.

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

Section 108.20, Purpose, is a repeat of former §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.

Section 108.21, Requirement, is a repeat of former §109.131 with non-substantative language changes. The rules 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 to continue it.

Section 108.22, Access to Dental Office, repeats verbatim the language of the former §109.132 which was adopted February 5, 1999. The purpose of the rule is to make it clear to practitioners that failure to grant agency inspectors immediate access to a dental office to investigate a sanitation complaint is serious as the health and safety of the public may be at risk. The reasons for adopting the rule in 1999 have not changed and the rule should be readopted.

Section 108.23, Definitions, is a repeat of former §109.221 with minor non-substantative language changes. The Board has determined that this rule should be continued and is therefore proposed for re-adoption.

Section 108.24, Required Sterilization and Disinfection. The language of this rule is taken verbatim from old §109.222, Required Sterilization and Disinfection. The Board has determined that the rule should be continued unchanged. It is therefore proposed for re-adoption with the only change being to the rule number.

Section 108.25, Dental Health Care Workers. Subsections (a) and (b) of this rule are taken verbatim from subsections (a) and (b) of former §109.223, Dental Health Care Workers. Subsections (c) (d) and (e) of §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, §109.223(f), now §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.

New Subchapter C, Anesthesia and Anesthetic Agents which covers §§108.30 through 108.34 replaces former §§109.171 through 109.175. With the exception of §108.32, Minimum Standard of Care, Anesthesia, discussed in detail below, the rules in this Subchapter are repeated verbatim from former §§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 rules as adopted then are appropriate now and the Board, with the minor changes described below proposes the re-adoption of the rules unchanged except for rule numbers.

Section 108.30, Effective Date, is a verbatim repeat of former §109.171, Effective Date.

Section 108.31, Definitions, is a verbatim repeat of former §109.172, Definitions.

Section 108.32, Minimum Standard of Care, Anesthesia, is changed from former §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 §109.173.

Section 108.33, Sedation/Anesthesia Permit, is a verbatim repeat of former §109.174.

Section 108.34, Permit Requirements and Clinical Provisions, is a verbatim repeat of former §109.175.

Section 108.35, Authority to Demonstrate Anesthesia, is a repeat of former §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.

Subchapter D, Mobile Dental Facilities contains all new rules. Current rules addressing Mobile or Moveable Offices, §§109.151 through 109.155 affect operations provided on a "no fee" basis and require prior approval by the State Board of Dental Examiners. Since 1995 no permits have been granted under the existing rules as they are limited to "no fee" operations.

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

New Subchapter E, Business Promotion. Section 108.50, Objective of Rules, serves as an introduction to the subchapter which deals with efforts to obtain business, including advertising, professional announcements and referral services. Subsection (a) announces that purpose. Subsection (b) is based on the American Dental Association's guidelines for ethical behavior.

Section 108.51, Advertisements, provides a definition of the term "Advertisements."

Section 108.52, False or Misleading Communications derives from former §109.204 and the American Dental Association's guidelines for ethical behavior, and provides some examples of communications that could be considered to be false or misleading in a material respect. The intent of the language contained in paragraphs (1) through (6) and (8) of former §109.204 is found in paragraphs (1) through (5) of the new rule. The intent of the language of paragraph (7) of former §109.204 is contained in §101.201 (4) of the Occupations Code. The intent of the language of former §109.204, paragraph (9), is found in §259.005 (10) of the Occupations Code. The intent of the language of paragraph (10) of former §109.204 is contained in §254.002 and §259.005 of the Occupations Code. The intent of the language of paragraph (11) of former §109.204 is found in new §§108.54, 108.55 and 108.58.

Section 108.53, Professional Announcements, derives from former §109.107, subsection (c) and provides that a dentist may announce the availability of any dental service as prescribed by the Texas Dental Practice Act, found in the Occupations Code.

Section 108.54, Announcement of Services, derives from former §109.107, subsection (e) and provides that general dentists may announce the services available in their practice so long as they do not express or imply specialization and so long as they announce that the services are provided by a general dentist.

Section 108.55, Announcement of Credentials in Non-Specialty Areas, derives from former §109.109 and the American Dental Association's guidelines for ethical behavior and provides that a general dentist may announce the attainment of additional credentials in an area of practice not recognized as a specialty by the American Dental Association. The dentist must announce that the services are provided by a general dentist.