Frequently Asked Legal Questions DISCLAIMER: The following frequently asked questions (FAQ's) are current as of May 2006. These FAQ's constitute current policy of the SBDE and are subject to change at any time without notice. The reader is advised to consult a current version of the dental practice act (DPA) and the SBDE's Rules before pursuing a course of action based upon these FAQ's. No attorney-client relationship is created by the provision of these FAQ's. Readers are advised to consult their own personal legal counsel regarding any issue addressed by these FAQ's. FAQ Subject Index
1. Dental Practice- Business
2. Dental Practice- Records
3. Dental Practice- Standard of Care
4. Dental Hygiene Practice
5. Dental Assistants
DENTAL PRACTICE-BUSINESS 1. What laws govern the practice of dentistry in the state of Texas? Answer: The primary sources of law governing the practice of dentistry in Texas are the Dental Practice Act (DPA) and the Rules and Regulations of the State Board of Dental Examiners (SBDE). The "Dental Practice Act" is the popular name for the law found in Subtitle D of the Texas Occupations Code. The Texas Occupations Code was enacted by the Texas Legislature. The Rules and Regulations of the SBDE are the rules adopted by State Board of Dental Examiners to regulate the practice of dentistry in Texas.
2. How do I obtain a copy of the DPA and SBDE's Rules and Regulations? Answer : A copy of the DPA and the SBDE's rules may be downloaded from the SBDE's website for free at www.tsbde.state.tx.us. Hardcopies of the DPA and the SBDE's rules may be obtained by sending a written request to the SBDE with a return address. The cost for a hardcopy of each publication is $15. Please make your check or money order payable to Texas State Board of Dental Examiners.
3. Can a non-dentist own a dental practice? Answer: No, only a licensed dentist may legally own a dental practice in Texas.
4. Are dentists required to carry malpractice insurance coverage in Texas? Answer: Dentists are not required to carry malpractice insurance coverage in Texas. However, the SBDE encourages every dental practitioner to carry an appropriate amount of malpractice insurance for the protection of the dentist.
5. Does the Dental Practice Act and/or the SBDE's Rules regulate the amount that a dentist may charge for his dental services? Answer: No. The DPA and the SBDE's rules do not specifically address what a dentist can and cannot charge for his dental services. However, SBDE Rule 108.2(e) prohibits flagrant and/or persistent overcharging, overdiagnosing or overtreating a patient. For the purpose of SBDE Rule 108.2(e), "overcharging" means the attempt to collect a fee without reasonable justification for any element of dental services provided to a patient that is in excess of the fee the dentist ordinarily charges to others for the same service. Also, SBDE Rule 108.8 (g) limits the amount that a dentist may charge for patient records.
6. Can a dentist dismiss a patient from her dental practice without abandoning the patient? Answer: Yes. A dentist may dismiss a patient (e.g. terminate the dentist-patient relationship) for a reasonable cause if the requirements of SBDE Rule 108.5 regarding Patient Abandonment are followed. The dentist must take steps to protect the dental health of the patient by completing any dental procedures that may be in progress prior to terminating the dentist-patient relationship. The dentist must also remain available for emergency services for at least thirty (30) days after notice of termination is served upon the patient. Please review the SBDE rule thoroughly prior to attempting to dismiss a patient. SBDE Rule 108.5 can be found on the Board's website located at www.tsbde.state.tx.us under the Agency Publications link.
7. What do I need to consider prior to closing a dental practice? Answer: A dentist that desires to close a practice must consider the following issues: Patient Abandonment- SBDE Rule 108.5 requires that an appropriate 30-day notice be sent to current patients prior to closing a practice. Records Maintenance- SBDE Rule 108.8(e) requires a dentist to arrange for either the maintenance or the transfer to a succeeding dentist of a patient's dental records when closing or leaving a practice. The SBDE must be notified in writing of the status of patient records no later than 15 days after a dentist closes or leaves a practice. Name Changes- Any dental practice name changes must be timely made in accordance with SBDE Rule 108.4 regarding the Names of Dentists. Application for Retirement Status- Dentists who desire to place their license on retirement status must send a retirement request to the SBDE in accordance with SBDE's Licensing Division requirements. Dentists who have an open and active Board complaint or are currently under a Board Order for disciplinary action may not change their status to retired until the case or order is resolved. A copy of the SBDE's retirement request form may be downloaded from the SBDE's website at www.tsbde.state.tx.us.
8. Where are the rules regarding dental advertising found? Answer: The rules regarding advertising are covered under Dental Practice Act Chapter 259 and SBDE Rules 108.50-108.61.
The Dental Practice Act and the SBDE Rules may be found at the SBDE's website located at www.tsbde.state.tx.us.
9. Are testimonials banned in advertising? Answer: SBDE Rule 108.59 states that a licensed Texas dentist shall not write, disseminate, or participate in testimonials in any manner as to such dentist's competency or ability or endorse proprietary remedies, drugs, instruments, equipment, appliances, food or food supplements, except to report the results of properly conducted and controlled experiments or clinical studies, provided that such reports are submitted only to recognized scientific journals or to recognized scientific professional associates, or both. SBDE Rule 108.59 can be found on the SBDE's website located at www.tsbde.state.tx.us .
10. How long may a dentist's name be associated with his practice after retirement or death? Can the name be maintained on signs or stationary of the dental practice? Answer: SBDE Rule 108.4 addresses this issue. A dentist's name may generally be associated with his practice for up to one year after retirement or death. If the practice is transferred to another dentist the former dentist's name may be used for no more than forty (40) days after the date of transfer. The use of a dentist's name on stationary and signs may be maintained as long as the dentist's name is associated with the practice. SBDE Rule 108.4 can be found on the SBDE's website located at www.tsbde.state.tx.us.
11. Can a dentist sell prescription items? Answer: No. A person must be a licensed pharmacist in order to legally sell prescription items in Texas. The practice of pharmacy without a pharmacy license is a Class A Misdemeanor.
12. What is the Annual Occupational Safety and Health Administration (OSHA) Training Requirement? Answer:
Employers must offer training on initial assignment, then at least annually. In addition, laboratory and production facility workers must receive specialized initial training. A full text on OSHA's Bloodborne Pathogens standard, published in the Title 29 of the Code of Federal Regulations 1910.1030, details what employers must do to protect their workers who put themselves at reasonable risk of coming into contact with blood and other potentially infectious materials.
OSHA Website: http://www.osha.gov/index.html
OSHA Safety and Health Topics:
DENTISTRY
(OSHA Standards, Hazard Recognition, Control and Prevention, Infection Control, Recordkeeping, and Additional Resources) - Click Here
MEDICAL AND DENTAL OFFICES - A Guide to Compliance with OSHA Standards - Click Here BLOODBORNE PATHOGENS AND NEEDLESTICK PREVENTION - Click Here
OSHA PUBLICATIONS - BY TOPIC - Click Here OSHA Posters
POSTERS IN ENGLISH - Click Here
POSTERS IN SPANISH - Click Here
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DENTAL PRACTICE-RECORDS1. How long must a dental record be maintained on a patient? Answer: SBDE Rule 108.8 states that a dentist must maintain records on a patient for at least 5 years from the last date that the dentist saw the patient. However, a dentist may determine that it is necessary to maintain the records of certain patients for a longer period of time. This is usually the case for minor patients. The disposal of records held longer than 5 years must be done in a manner that preserves patient confidentiality (e.g. shredding, incineration as allowed by law, etc.).
2. Do patients have a right to obtain a copy of their dental record and can a dentist charge for copying the records? Answer: Yes, and yes. SBDE Rule 108.8 requires a dentist to provide a patient a copy of the patient's dental record within (30) days of the patient's request for a dental record copy. SBDE Rule 108.8 also sets out the maximum amount a dentist may charge for the records. SBDE Rule 108.8 can be found on the Board's website located at www.tsbde.state.tx.us.
3. Can a dentist withhold a patient's dental records because of an unpaid balance? Answer: No, a dentist cannot withhold a patient's records on the basis that the patient has an unpaid balance for dental services. The dentist may pursue all legal methods to collect an unpaid balance including collections and civil court actions. The dentist can also charge the patient copying costs for patient records as outlined in SBDE Rule 108.8 and may withhold patient records until all copying costs are paid by the patient.
4. Do I need to notify the SBDE if I transfer my dental records to another dentist who is taking over my practice? Answer: Yes, SBDE Rule 108.8(e) requires notice to be provided to the SBDE within 15 days of transferring dental records to another dentist if you are leaving the practice location and will not be personally maintaining your patient records.
5. Where can I find information on the Health Insurance Portability and Accountability Act (HIPAA)?
Answer: HIPAA is a federal statute that addresses many wide ranging issues with regard to the portability of insurance and the privacy of patient records. Please contact the Texas Department of State Health Services and the Texas Department of Insurance for additional information. The following websites contain helpful information regarding HIPAA: http://www.dshs.state.tx.us/hipaa/default.shtm
http://www.ada.org/prof/resources/topics/hipaa/index.asp
http://www.hipaadvisory.com/
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DENTAL PRACTICE-STANDARD OF CARE1. Do I need to take a patient's blood pressure or pulse measurement every time the patient has an appointment at my dental office? Answer: SBDE Rule 108.7(2)(B) states that the initial limited physical examination should include, but shall not necessarily be limited to, blood pressure, and pulse/heart rate as may be indicated for each patient. The SBDE has determined that the minimum standard of care requires the recording of at least an initial baseline blood pressure/pulse reading during the initial limited physical examination of a dental patient. The dental practitioner should also record blood pressure and pulse heart rate as indicated for invasive procedures and as required by Board rules regarding procedures involving sedation and anesthesia. If the dental practitioner is unable to obtain a patient's vital signs, the dental practitioner must document in the patient's record an acceptable reason why the attempt to obtain vital signs was unsuccessful. Also, please note that blood pressure and pulse measurement need not be taken on a patient that is twelve (12) years of age or younger unless there is a specific medical need.
2. Can a dentist issue prescriptions for non-dental purposes (i.e. viagra, birth control pills, etc.)? Answer: All dental prescriptions are required to have a dental purpose. Prescribing for a non-dental purpose is a violation of the DPA and the SBDE's Rules.
3. Where are rules for the administration of enteral conscious sedation located? Answer: The rules for enteral conscious sedation are found in SBDE Rule Chapter 110. SBDE Rule Chapter 110 can be found on the SBDE's website at www.tsbde.state.tx.us .
4. Can a dentist delegate the adjustment of a dental appliance to a dental auxiliary? Answer: Under DPA Section 258.001(3)(G) a dentist may not delegate the intraoral adjustment of a fixed or removable appliance to anyone not licensed as a dentist. Also, only a licensed dentist can make final adjustments to dental appliances. Adjustments that are not final or are extra-oral can be delegated by the dentist to an assistant.
5. What are the requirements for sterilization monitoring? Answer: Rule 108.24 requires that sterilization equipment and its adequacy shall be tested and verified in accordance with American Dental Association (ADA) recommendations. The ADA recommends the routine and regular use of biological monitors to test and verify the adequacy of sterilization cycles on a weekly basis for most dental practices.
6. Where can I find the SBDE's rules regarding sanitation and infection control? Answer: The SBDE’s rules regarding sanitation and infection control are found in SBDE Rule Chapter 108, Subchapter B (SBDE Rules 108.20-108.25). Additional information regarding proper sanitation and infection control procedures can be found at the following websites: The CDC on Oral Health: http://www.cdc.gov/OralHealth/index.htm
The ADA on Infection Control: http://www.ada.org/prof/resources/topics/icontrol/index.asp
OSHA standards for Dentistry: http://www.osha.gov/SLTC/dentistry/index.html
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DENTAL HYGIENE PRACTICE1. Where are the rules regarding the delegation of tasks to Dental Hygienists found? Answer: Regulations regarding the delegation of tasks to dental hygienists may be found in the following DPA and SBDE rules sections:
-Dental Practice Act Section 258.001 and Chapter 262
-SBDE Rules Chapter 115
2. Can a dental hygienist perform assigned tasks and duties when the supervising dentist is not physically located on the dental office premises? Answer: Yes, as long as the requirements of Texas Occupations Code §262.151 are met. The patient must: 1) not be a new patient to the dental practice that has not been examined by the supervising dentist, 2) the dentist must have seen the patient within the previous 12 months, and 3) the dentist must have delegated to the dental hygienist the service, task, or procedure performed (such as teeth cleaning) on the patient in question. Please consult Dental Practice Act Section 262.151.
3. Can dental hygienists use a topical anesthetic in their practice (i.e. Oraqix®)? Answer: Yes. Anesthetics such as Oraqix® are considered topical in nature and may be utilized by a dental hygienist under the supervision of a dentist.
4. Can dental hygienists perform a teeth bleaching/whitening procedure? Answer: Yes. The removal of stains, other than mottled enamel stains, from the surface of human teeth falls within the legal definition of dental hygiene and therefore teeth whitening procedures may be performed by dental hygienists under the supervision of a dentist.
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DENTAL ASSISTANTS1. What tasks may be delegated to a Dental Assistant? Answer: Regulations regarding dental assistant duties may be found in the following DPA and SBDE rules sections:
-Dental Practice Act Section 258.001, 258.002, and Chapter 265.
-SBDE Rules Chapter 114.
2. Can a dental assistant provide oral sedatives or medications to a patient under the direct supervision of the dentist? Answer: Yes, a dental assistant may provide oral sedatives or medications to a patient as long as the dentist has prescribed, prepared and/or dispensed the appropriate amount of oral sedatives or medications. The dental assistant must be under the direct supervision of the dentist and the dentist must be present on the premises while the medication is being provided.
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