The State Board of Dental Examiners (SBDE) adopts new §§108.50 - 108.55 and §§108.57 - 108.63, concerning Business Promotion, to be effective on May 1, 2013. Sections 108.51 - 108.53, 108.55, 108.57, 108.58, and 108.63 are adopted with changes to the proposed text as published in the September 28, 2012, issue of the Texas Register (37 TexReg 7653) in response to public comment and will be republished. Sections 108.50, 108.54, and 108.59 - 108.62 are adopted without changes to the proposed text and will not be republished.

The adopted rules are §108.50, relating to Objectives of Rules; §108.51, relating to Definitions; §108.52, relating to Names and Responsibilities; §108.53, relating to Fees; §108.54, relating to Advertising of Specialties; §108.55, relating to Advertising for General Dentists; §108.57, relating to False, Misleading or Deceptive Advertising; §108.58, relating to Solicitation, Referrals and Gift Schemes; §108.59, relating to Website Disclosures; §108.60, relating to Record Keeping of Advertisements; §108.61, relating to Grounds and Procedures for Disciplinary Action for Advertising Violations; §108.62, relating to Awards, Honors and Recognitions; and §108.63, relating to Advertisement and Education by Unlicensed Clinicians. A repeal of §§108.50 - 108.61 is concurrently adopted to be effective on May 1, 2013. A Notice of Withdrawal of the proposal of §108.56 as published in the Texas Register on September 28, 2012; and a proposal for new §108.56 are also concurrently filed.

The SBDE's Advertising Rules Ad-Hoc Committee was convened to update the agency's advertising rules based on emerging technologies and issues in the business promotion of dentistry and dental practices. The committee met on August 4, 2011; October 7, 2011; November 10, 2011; January 27, 2012; March 9, 2012; and July 13, 2012.

The new rules are adopted to protect the public from false, misleading or deceptive advertisement and to offer SBDE's licensees clear guidance as to restrictions on advertising.

The new rules are modeled in part after the American Association of Dental Board's (AADB) Guidelines on Advertising. In addition to the generally accepted guidelines promulgated by the AADB, the rules address the communication of specialty practices to the public, the inclusion of professional awards and honors in advertisements, and recommendations regarding website publications. A significant change in the rules is that the publication of patient testimonials is now permitted.

Six public comment submissions were received in response to the proposed rules as published in the September 28, 2012, issue of the Texas Register (37 TexReg 7653). One comment was received from the Texas Academy of General Dentistry; one comment was received from the Texas Dental Association; two comments were received from Texas licensed dentists writing as representatives of corporate dental practices; one comment was received from a Texas licensed dentist writing without affiliation; and one comment was received from a Texas attorney.

One comment was received from Texas Academy of General Dentistry regarding the implementation schedule of the proposed rules. The comment asks SBDE to consider real life scenarios like billboard or Yellow pages contracts that may require a significant period of time to alter. SBDE agrees. The rules will be in effect on May 1, 2013.

One comment was received from Texas Academy of General Dentistry and one comment from Texas Dental Association requesting clarification of §108.52 as to the requirements of dental office signage; particularly the physical sign adhered to the building housing the dental office or in front of the entrance of a dental office. The rule has been modified in response to public comment to indicate that although signage may be an advertisement, the requirements of §108.52 do not apply to the dental office's primary signs used to designate the office location that are adhered to buildings or at the entrance to the dental office or shopping park.

One comment was received from Texas Dental Association requesting the language of §108.52(a)(2) mirror the language of Texas Occupations Code §251.003(a)(4). SBDE agrees. The rule has been modified as recommended by the public comment.

One comment was received from Texas Dental Association requesting clarification of §108.52(b). The comment asks whether an owner must display his or her name as well as the names of dentists practicing at a particular location on both the office's primary sign and in separate signage at or near the entrance. Section 108.52(b) contemplates a display at or near the entrance to the dental practice that indicates the names, professional degrees, and schools attended of all those practicing dentistry at that particular location, so that a member of the public who is physically present in the office may be readily informed of all those working the office. On the other hand §108.52(c)(3) refers to advertisements generally and requires the name of the owner and the name of at least one dentist practicing at the specific location advertised.

One comment was received from Texas Academy of General Dentistry stating that §108.53(b) requiring "prior knowledge and written approval of the patient" concerning any lawful splitting of fees is burdensome. SBDE disagrees and holds that the rule mirrors the intent and language of §108.1(6) to protect patients from misleading payment schemes and the required informed consent protects the public from misleading payment schemes.

One comment was received from Texas Academy of General Dentistry regarding the application of §108.55 to office signage. The comment asks whether the advertising requirements apply to signage adhered to the building outside the office at a shopping center or at an entry to a parking lot. SBDE has modified §108.51 in response to public comment to indicate signage adhered to the building or to designate parking need not meet all the requirements of the Business Promotion rules. As a point of clarification, SBDE points out that §108.55 requires a disclosure of "general dentist" or "general dentistry" only when specific services are advertised, and many advertisements, including signage, may not mention specific services.

One comment was received from an Texas licensed dentist and one comment was received from a Texas licensed dentist affiliated with a corporate dental practice regarding §108.58(b). The comments request SBDE prohibit the giving of gifts to potential and current patients. SBDE holds that providing gifts to patients of record in appreciation of the ongoing relationship and gifts of nominal value to non-patients is appropriate. One comment refers to the Federal Anti-Kickback Statute. When providing gifts to patients of records, all dentists should be sure to comply with the regulations governing any federal or state program in which they participate and any federal or state law or regulation. Other laws or regulations may have stricter guidelines.

One comment was received from a Texas attorney and one comment was received from a Texas licensed dentist writing on behalf of a corporate dental practice regarding §108.58. The comments recommend SBDE allow gifts of nominal value to potential patients. SBDE agrees. One comment recommended a $10 limit on gifts for all patients and for potential patients. SBDE partially agrees and has modified the rule to reflect public comment. SBDE holds that the intent of the rule is to protect the public from deceptive or coercive solicitation practices. SBDE holds that once a relationship is established with a patient of record, the risk of deception or coercion to gain patronage has diminished, and the need to limit the gift value has decreased. However, SBDE finds the information provided in the comments persuasive. Particularly, it notes the inclusion of a study of low-income, rural children that indicated incentives valued at $5 were more effective than others at encouraging patients to seek initial and follow-up visits. The comment recommended SBDE adopt an exception allowing gifts of no more than $10 per patient.

One comment was received from Texas Academy of General Dentistry regarding §108.58(b), revealing that dentists presently send gifts of nominal value to current patients to express gratitude for the patients' referrals of new patients. SBDE holds that this practice is a violation of current Texas law, Texas Occupations Code §102.001. A dentist may provide gifts of any value to current patients; however, those gifts may not be provided in gratitude for a patient referral. A dentist may provide a gift to a current patient in gratitude for the patient's continued patronage or confidence in the dental practice, or for any other lawful reason.

One comment was received from Texas Academy of General Dentistry requesting clarification of §108.58(c) and its application to internet advertising services. SBDE's current interpretation of the rule holds that the "volume or value of any patient referrals" refers to the number of new patients who appoint and present in the dentist's office for services. A "click" on an advertisement or the purchase of a voucher does not necessarily result in a new patient referral.

The new rules are adopted pursuant to Texas Government Code §§2001.021 et seq. and Texas Occupations Code §254.001, which authorize the SBDE to adopt and enforce rules necessary for it to perform its duties.

The adoption of the new rules affects Texas Occupations Code, Title 3, Subtitle D and Texas Administrative Code, Title 22, Part 5.