The State Board of Dental Examiners adopts 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. Section 108.8 of Subchapter A, Professional Responsibility and §§108.40, 108.41, 108.42 and 108.43 of Subchapter D, Mobile Dental Facilities were adopted with changes to the proposed text as published in the September 22, 2000, issue of the Texas Register (25 TexReg 9311). All other sections were adopted without changes.

Chapter 108, Professional Conduct, is adopted as a replacement for Chapter 109, Conduct which was repealed and a complete explanation of the disposition of each rule in Chapter 108 follows.

Subchapter A, Professional Responsibility covers Rules 108.1 through 108.11.

Section 108.1, Professional Responsibility. Language of this rule was formerly found in Rule 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 Rule 109.103(7). The words "but are not limited to" have been eliminated because the words "shall include" make them unnecessary. The review of repealed rule 109.103 confirms that the reasons for initially adopting the language and intent of that rule still exist.

No comments were received regarding adoption of the proposal.

Section 108.2, Fair Dealing, language was derived from former Rules 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 Rule 109.122. This is based on the American Dental Association's guidelines for ethical behavior. The language of 108.2(b) derived from former Rule 109.122 and is repeated verbatim. The language of 108.2(c) repeats that found in former Rule 109.141(b). Subsection (d) of Rule 108.2 repeats the language of former Rule 109.141(a), with the exception of the first sentence of that section. The language of 108.2(e) derives from Section 101.203 of the Texas Occupations Code and Rule 109.211(17), which defines "overcharging." Section 108.2(f) repeats verbatim the language of former Rule 109.105 and states that a dentist cannot ask an auxiliary to perform a procedure that he or she cannot perform. The Board has determined that the language and intent of repealed rules 109.105, 109.122, 109.141 and 109.211 continues to exist and has been supplanted by new rule 108.2. The Board has determined that the reasons for initially adopting the language and the intent of the repealed rules 109.105, 109.122, 109.141 and 109.211 continue to exist and have been supplanted by new rule 108.2.

No comments were received regarding adoption of the proposal.

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

No comments were received regarding adoption of the proposal.

Section 108.4, Names of Dentists, combines provisions of repealed rules 109.2, 109.6, 109.7, 109.201 and Sections 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 Section 259.003, Occupations Code and subsection (b) of former rule 109.2. Subsection (c) derives from former rule 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 rule 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 rule 109.6(b), with minor grammatical changes. Subsection (f) derives from former rule 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. The review of the repealed rules, as well as the cited statutes, confirms that the reasons for the language and intent of the rules still exists.

No comments were received regarding adoption of the proposal.

Section 108.5, Termination of Relationship, is adopted as a replacement for Rule 109.121, which was repealed. The new rule clarifies that a dental patient's oral health should not be jeopardized by termination of the dentist-patient relationship. The Board found that it was called upon frequently to explain the requirements for termination and the new rule is intended to provide guidelines and prevent confusion. Rule 108.5 provides detailed instructions that a dentist can follow in terminating a dentist-patient relationship. Paragraph (1) directs a minimum 30-day notice period and the methods to deliver the notice. Paragraph (2) lists the elements of a proper written notice and paragraph (3) states that a dentist shall continue to render appropriate care for at least 30 days from the date the notice was mailed.

In response to publication for comment, the Board received written comments 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 written comments expressed concern that a dentist working in a correctional institution might be found to have improperly terminated dental services for a patient who was transferred to another institution. An inmate who is a dental patient may be transferred to a different facility, at any time. The transfer is outside the control of the treating dentist, who, it is feared, might be held accountable for terminating the dentist-patient relationship. The new rule only applies to a situation when a dentist terminates the relationship. Rule 108.8 provides that a dentist may transfer original records to another dentist "who will provide treatment. The Board is of the opinion that a transfer of an inmate who is a dental patient does not trigger the application of Rule 108.5.

On the other hand, the Board recognizes that there may be times when a treating dentist wishes to terminate the dentist-patient relationship with an inmate. The fact that the relationship occurred in an institutional setting does not seem to be an impediment to compliance with the rule. If a patient is transferred within the 30-day notice period, treatment can be assumed by a dentist at the new location, who will be informed of the termination by referral to the patient's dental records.

The Board is of the opinion that the language of Rule 108.5 is appropriate and should not be changed.

Section 108.6, Report of Patient Death or Injury Requiring Hospitalization, replaces repealed rule 109.177, which was difficult to interpret, because of ambiguous language. Rule 108.6 is an attempt to clarify the circumstances under which a dentist must report an adverse incident arising as a consequence of dental treatment. Under repealed rule 109.177, 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). Rule 108.6 as stated requires that 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. The Board has determined that the intent of the repealed rule continues to be valid and has been supplanted by new rule 108.6.

No comments were received regarding adoption of the proposal.

Section 108.7, Minimum Standard of Care, General, repeats verbatim the language of the repealed rule 109.173. The intent of new rule 108.7 is to establish a minimum standard of care for all dentists practicing in Texas. Because of the location of repealed rule 109.173 in Subchapter L, Anesthesia and Anesthetic Agents, many dentists were unaware of the rule, because they do not hold anesthesia permits. Rule 108.7 in new Subchapter A, Professional Responsibility, makes it clearer that the standard applies to all dentists. The Board has determined that the intent of the language of repealed rule 109.173 is still valid and has been supplanted by new rule 108.7.

No comments were received regarding adoption of the proposal.

Section 108.8, Records of the Dentist is adopted as a replacement for Rule 109.144, which was repealed. The new rule expands the provisions of the former rule pertaining to dental records and recognizes the effect of new legislation, effective September 1, 1999, that provides dental patients with a privilege against disclosure of personal information found in those records. In response to publication for comment, the Board received written comments from a representative of the University of Texas Medical Branch (UTMB), which provides dental services to the Texas Department of Criminal Justice and Texas Youth Commission.

Section 108.8 clarifies the requirements for record keeping and provides guidelines about responsibility for the custody of patient records. Subsection (a) provides a definition of "adequate records." Subsection (b) provides a listing of documents and tangible objects that can be considered "dental records." Subsection (c) requires compliance with DEA and DPS prescription programs. Subsection (d) requires compliance with the Texas Controlled Substances Act. Subsection (e) clarifies that dental records belong to the dentist who provided treatment. The language also permits transfers of records under certain circumstances. Some minor grammatical changes are made for consistency. Subsection (f) explains what a dentist should do with records when he or she leaves a practice or location. It also clarifies the requirements for the possible transfer of records in an employment situation. Subsection (g) recognizes the new privilege against disclosure and provides that compliance with a request for records by Board investigators does not violate that privilege. Subsection (h) spells out the procedure for a patient to follow in order to obtain copies of dental records. It also clarifies that copies may not be withheld because of a past due account.

Written comments received in response to publication expressed concern about the possible impact of the rule on state agencies which employ dentists. UTMB commented about subsections (b), (e) and (h) of the rule. Requirements to retain bulky objects such as study models, casts, molds and impressions, found in the definition of "dental records" in subsection (b), would require additional expenditures to increase warehouse space. The agency archives paper records but has no guidelines to retain the other items. The commenter suggested that the Board adopt additional language permitting state agencies to establish rules for maintenance of health records.

The rule governs the conduct of individual dentists in the provision of dental services to patients. As such, the rule is intended to protect dental patients and dentists who treat them. The rule does not mandate how an organization that employs dentists should conduct its business.

The Board is not insensitive to the unique environment in which correctional institutions operate and the requirements placed upon them by federal and state law. However, in the event of a claim of unsatisfactory dental services, it is essential to have thorough documentation of procedures performed on dental patients. Dentists who practice in institutional settings are held to the same standard of care as sole practitioners in private practice. Regrettably, the impact of the requirement to keep study models, casts, molds and impressions increases significantly in magnitude for a large population, such as residents of correctional institutions. The Board, while sensitive to the additional burden placed on such organizations, is of the opinion that subsection (b) is appropriate and should not be changed.

UTMB also expressed concern about the application of subsection (e). This subsection states that dental records belong to the treating dentist. The records of offenders are maintained in a centralized depository. He suggested language that would permit a different interpretation of the responsibility for dental records. The Dental Practice Act at §255.051(a) provides that dental records belong to the dentist who performs a dental service and the Board by rule cannot change the effect of that provision.

Concerning subsection (h), the commenter pointed out that his agency does provide dental records to patients who request them, but that fees charged for copies should be established internally. The Board recognizes that dentists employed in correctional institutions work under different circumstances than private practitioners. They are paid by salary and do not personally incur costs for reproduction of records. Offenders are paid according to institutional standards. All costs and fees addressed in subsection (h) are paid, ultimately, from tax revenue. Fees to be paid will come from the same source.

The Board approves the suggested language and Rule 108.8 at subsection (h) is amended by adding the following language in new paragraph (4): "state agencies and institutions will provide copies of dental health records to patients who request them following applicable agency rules and directives."

Section 108.9, Dishonorable Conduct, provides that the listed conduct constitutes a violation of the law. It is derived from repealed rule 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 repealed rule 109.211. Paragraph (1) of former rule 109.211 is unnecessary, in view of the language contained in new paragraph (5). Former paragraph (6) is addressed in Sections 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 Sections 102.001 through 102.011 and 259.008 of the Occupations Code. The intent of former paragraphs (11), (12) and (13) of former Rule 109.211 is addressed in new rule 108.1(1) and is repealed as unnecessary. Former paragraph (14) is addressed in Chapter 53 of the Occupations Code, as well as Sections 263.001, 263.002 and Rule 101.8. Former paragraph (15) is repealed as unnecessary because its intent is contained in Section 251.003 of the Occupations Code and new rule 108.70, formerly rule 109.500. Former paragraph (16) and (17) are repealed because their intent is found in the language of new rule 108.2(e). The Board has determined that the reasons for initially adopting the language and the intent of repealed rule 109.211 still exist and are supplanted with modifications in new rule 108.9.

No comments were received regarding adoption of the proposal.

Section 108.10, Educational or Other Requirement, derives from repealed rule 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 Sections 263.001, 263.002 and rule 101.8, pertaining to the effect of a felony conviction. The Board has determined that the reasons for initially adopting the language and intent of repealed rule 109.181 continue to exist and the language regarding felony convictions is contained in another rule and statutes.

No comments were received regarding adoption of the proposal.

Section 108.11, Display of Registration is adopted to comply with new legislation effective September 1, 1999 in Senate Bill 964, Section 6. The new legislation amended former article 4548d, now Section 256.103 of the Occupations Code, which required display of a license by a dentist. The legislation requires that dentists and dental hygienists display a current registration certificate in each office where they practice. It recognizes that dental hygienists as well as dentists must annually renew their registration with the Board. It was possible that a practitioner could have received a dental license at some time in the past, but might not be current with the Board. The requirement to display a current registration certificate expands application of the rule to dental hygienists and assures the public that they are receiving dental services from practitioners who are properly registered with the Board. The new rule implements the recent legislation.