New Mexico Register / Volume XXIX, Issue 5 / March 13, 2018

 

 

This is an amendment to 16.5.16 NMAC, Section 10 effective 3/18/2018.

 

Explanatory statement: Statute citations throughout the rule were corrected to conform to correct legislative styles.

 

16.5.16.10             GUIDELINES:  The board shall use the following as guidelines for disciplinary action.

                A.            “Gross incompetence” or “gross negligence” means, but shall not be limited to, a significant departure from the prevailing standard of care in treating patients.

                B.            “Unprofessional conduct” means, but is not limited to because of enumeration:

                                (1)           performing, or holding oneself out as able to perform, professional services beyond the scope of one’s license and field or fields of competence as established by education, experience, training, or any combination thereof; this includes, but is not limited to, the use of any instrument or device in a manner that is not in accordance with the customary standards and practices of the dental profession;

                                (2)           failure to refer a patient, after emergency treatment, to his/her regular dentist and inform the latter of the conditions found and treated;

                                (3)           failure to release to a patient copy of that patient’s records and x-rays within 15 business days regardless whether patient has an outstanding balance;

                                (4)           failure to seek consultation whenever the welfare of the patient would be safeguarded or advanced by referral to individuals with special skills, knowledge, and experience, including:

                                                (a)           an owner dentist or supervisor causing an employee dentist to make a referral for dental treatment based on contractual obligations when, in the judgment of the treating dentist, the welfare of the patient would be safeguarded or advanced by referral to another practitioner, and failure to notify the patient of such contractual obligations for referrals;

                                                (b)           an owner dentist or supervisor causing an employee dentist to use a dental laboratory due to contractual obligations when, in the judgment of the treating dentist, the welfare of the patient would be safeguarded or advanced by the use of another dental laboratory.

                                (5)           failure to advise the patient in simple understandable terms of the proposed treatment, the anticipated fee, the expectations of success, and any reasonable alternatives;

                                (6)           failure of a dentist to comply with the following advertising guidelines, no person shall:

                                                (a)           practice dentistry under the name of a corporation, company, association, limited liability company, or trade name without full and outward disclosure of his/her full name, which shall be the name used in his/her license or renewal certificate as issued by the board, or his/her commonly used name;

                                                (b)           practice dentistry without displaying his/her full name as it appears on the license issued by the board on the entrance of each dental office;

                                                (c)           fail to include in all advertising media for the practice (excluding building signage and promotional items), in a reasonably visible and legible manner, the dentist’s names(s), address and telephone number or direct reference where the name of the dentist(s) can be found as defined in Section 16.5.16.7 NMAC;

                                                (d)           advertise an offer for goods or services that does not meet the following requirements:

                                                                (i)            for a printed advertisement, all applicable conditions and restrictions of an offer, as well as the direct reference to the licensee(s), shall be no smaller than twenty percent of the largest [front] font contained in the advertisement;

                                                                (ii)           for an audio advertisement, all applicable conditions and restrictions of an offer, as well as the direct reference to the licensee(s), must be stated at the same volume and speed as the offer language;

                                                                (iii)         advertise a practice in a false, fraudulent or misleading manner; if the name of the practice or office contains one of the American dental association recognized specialties and only a general dentists performs that service, the advertisement, signage, or broadcast media must say “services provided by a general dentist”, so as not to imply that a specialist is performing such procedures; and

                                                                (iv)          advertise as a specialist unless the dentist is licensed by the board to practice the specialty or unless the dentist has earned a post-graduate degree or certificate from an accredited dental college, school of dentistry of a university or other residency program that is accredited by commission on dental accreditation (CODA) in one of the specialty areas of dentistry recognized by the American dental association.

                                (7)           failure to use appropriate infection control techniques and sterilization procedures;

                                (8)           deliberate and willful failure to reveal, at the request of the board, the incompetent, dishonest, or corrupt practices of another dentist licensed or applying for licensure by the board;

                                (9)           accept rebates, or split fees or commissions from any source associated with the service rendered to a patient; provided, however, the sharing of profits in a dental partnership, association, HMO or DMO, or similar association shall not be construed as fee-splitting, nor shall compensating dental hygienists or dental assistants on a basis of percentage of the fee received for the overall service rendered be deemed accepting a commission;

                                (10)         prescribe, dispense or administer drugs outside the scope of dental practice;

                                (11)         charge a patient a fee which is not commensurate with the skill and nature of services rendered, such as to be unconscionable;

                                (12)         sexual misconduct;

                                (13)         breach of ethical standards, an inquiry into which the board will begin by reference to the most current code of ethics of the American dental association;

                                (14)         the use of a false, fraudulent or deceptive statement in any document connected with the practice of dentistry;

                                (15)         employing abusive billing practices;

                                (16)         fraud, deceit or misrepresentation in any application;

                                (17)         violation of any order of the board, including any probation order;

                                (18)         injudicious prescribing, administration, or dispensing of any drug or medicine;

                                (19)         failure to report to the board any adverse action taken by any licensing board, peer review body, malpractice insurance carrier or any other entity as defined by the board or committee; the surrender of a license to practice in another state, surrender of membership on any medical staff or in any dental or professional association or society, in lieu of, and while under disciplinary investigation by any authority;

                                (20)         negligent supervision of a dental hygienist or dental assistant;

                                (21)         cheating on an examination for licensure; or

                                (22)         failure to comply with the terms of a signed collaborative practice agreement;

                                (23)         failure of a dentist of record, or consulting dentist, to communicate with a collaborative practice dental hygienist in an effective professional manner in regard to a shared patient’s care as defined in Section 16.5.17 NMAC;

                                (24)         assisting a health professional, or being assisted by a health professional that is not licensed to practice by a New Mexico board, agency or commission;

                                (25)         failure to make available to current patients of record a reasonable method of contacting the treating dentist or on-call service for dental emergencies; dental practices may refer patients to an alternate urgent care or emergency facility if no other option is available at the time, or if the contacted dentist deems it necessary for the patient’s well-being;

                                (26)         conviction of either a misdemeanor or a felony punishable by incarceration;

                                (27)         aiding and abetting a dental assistant, expanded function dental auxiliary or community dental health coordinator who is not properly certified;

                                (28)         patient abandonment;

                                (29)         habitually addicted as defined in Subsection C and D of Sections 61.5A-21 4 & 6 or 61.5B-3 NMSA 1978 habitual or excessive use or abuse of drugs, as defined in the Controlled Substances Act, Section (30-31-1 NMSA 1978) or habitual or excessive use or abuse of alcohol;

                                (30)         failure of the licensee to furnish the board within ten business days of request, its investigators or representatives with information requested by the board;

                                (31)         failure to appear before the board when requested by the board in any disciplinary proceeding;

                                (32)         failure to be in compliance with the Parental Responsibility Act Section 40-5A-3 NMSA 1978 seq.;

                                (33)         fraudulent record keeping;

                                (34)         failure to properly install  amalgam separator as defined in Section 16.5.58 NMAC;

                                (35)         failure to properly operate and maintain amalgam separator as defined in Section 16.5.58 NMAC; and

                                (36)         failure to properly dispose of amalgam waste as defined in 16.5.58 NMAC.

[9/13/1969, 10/21/1970, 4/11/1981, 3/9/1989, 3/11/1989,10/16/1992, 5/31/1995, 6/4/1996, 2/14/2000; 16.5.16.10 NMAC - Rn & A, 16 NMAC 5.16.10, 12/14/2000; A, 07/16/2007; A, 07/19/2010; A, 01/09/2012; A, 06/14/2012; A, 07/17/2013; A, 01/04/2014; A, 01/15/2015; A, 3/25/2016; A, 3/15/2017, A, 3/18/2018]