SECTION 108.70. Improper Influence on Professional Judgment

(a) For the purposes of this rule, the term dentist shall include the following:

(1) a dentist licensed by the State Board of Dental Examiners;

(2) a professional corporation wholly owned by one or more dentists;

(3) other entities that provide dental services and are owned by one or more dentists.

(b) Any dentist entering into any contract, partnership or other agreement or arrangement which allows any person other than a dentist any one or more of the following rights, powers or authorities shall be presumed to have violated the provisions of the Dental Practice Act, Section 251.003 regarding controlling, attempting to control, influencing, attempting to influence or otherwise interfering with the exercise of a dentist's independent professional judgment regarding the diagnosis or treatment of any dental disease, disorder or physical condition:

(1) Controlling, owning or setting any conditions for access to or the specific contents of dental records of patients of a dentist.

(2) Setting a maximum or other standardized time for the performance of specific dental procedures.

(3) Placing any limitations or requirements on treatments, referrals, or consultations except those based on the professional judgment of the dentist.

(4) Limiting or imposing requirements concerning the type or scope of dental treatment, procedures or services which may be recommended, prescribed, directed or performed, except that a dentist may limit the dentist's practice or the practice of a dentist employed by or contracting with the dentist to certain procedures or the treatment of certain dental diseases.

(5) Limiting or imposing requirements concerning the supplies, instruments or equipment deemed reasonably necessary by a dentist to provide diagnoses and treatment of the patients of the dentist.

(6) Limiting or imposing requirements for the professional training deemed necessary by the dentist to property serve the patients of the dentist.

(7) Directing or influencing the selection of specific diagnostic examinations and treatment or practices regarding patients without due regard to the recommended diagnostic examinations and treatment agreed upon by the dentist and the patient, except that a dentist having the responsibility for training or supervising another dentist may reasonably limit treatment or practices as a part of the training or supervision of a dentist based upon the training and competency of a dentist to perform certain treatment or practices

(8) Limiting or determining the duties of professional, clinical or other personnel employed to assist a dentist in the practice of dentistry.

(9) Establishing professional standards, protocols or practice guidelines which in the professional judgment of the dentist providing dental service to the dentist's patient, conflict with generally accepted standards within the dental profession.

(10) Entering into any agreement or arrangement for management services that:

(A) interferes with a dentist's exercise of his/her independent professional judgment;

(B) encourages improper overtreatment or undertreatment by dentists; or

(C) encourages impermissible referrals from unlicensed persons in consideration of a fee.

(11) Placing limitations or conditions upon communications that are clinical in nature with the dentist's patients.

(12) Precluding or restricting a dentist's ability to exercise independent professional judgment over all qualitative and quantitative aspects of the delivery of dental care.

(13) Scheduling patients of the dentist in a manner that may have the effect of discouraging new patients from coming into the dentist's practice, or postponing future appointments or that give scheduling preference to an individual, class or group.

(14) Penalizing a dentist for reporting violations of a law regulating the practice of dentistry.

(15) Conditioning the payment of fees to a dentist or the amount of management fees a dentist must pay, on the referral of patients to other health care providers specified by a non-dentist.

(c) The entry into one or more of the following agreements by a dentist shall not be presumed to have violated the Texas Dental Practice Act, Section 251.003.

(1) Leases, mortgages, ownership agreements or other arrangements regarding use of space for dental offices, based on a set, non percentage fee reasonably related to the fair market value of the office space provided at the time the lease or other arrangement is entered into.

(2) Agreements regarding the purchase, sale, financing or lease of dental equipment, instruments and supplies so long as the dentist maintains the complete care, custody, and control of the dental instruments and supplies and the lease does not provide for a payment or fee based upon a percentage of the revenue received by the dentist, or the dental practice.

(3) Agreements providing for accounting, bookkeeping, investment or similar financial services.

(4) The financing, lease, use or ownership of non-dentist business equipment such as telephones, computers, software, and general office equipment at reasonable, market related fees.

(5) Services regarding the pledge, collection or sale of accounts receivable from patients.

(6) Agreements regarding billing and collection services.

(7) Advertising and marketing services so long as the dentist remains solely responsible for the content of any advertising or marketing services and for ensuring that such conform to all applicable legal requirements.

(8) Agreements regarding consulting, professional development, business practices and other advisory agreements which do not limit the dentist's ability to use the dentist's independent professional judgment regarding the diagnosis or treatment of any dental disease, disorder or physical condition.

(9) Employment agreements which specify that the dentist shall continue to have the right to use the dentist's independent professional judgment regarding the diagnosis or treatment of any dental disease, disorder or physical condition, provided that in practice the dentist is allowed to use the dentist's professional judgment.

(d) The provisions of subsection (c) of this section herein may be rebutted and the entry into these agreements or other undertakings may be found to be in violation of the Dental Practice Act if it can be shown that the agreements or other undertakings result in the control, attempt to control, influence, attempt to influence or otherwise interfere with the exercise of a dentist's independent professional judgment regarding the diagnosis or treatment of any dental disease, disorder or physical condition.

(e) This rule shall not be applicable to dentists or others covered by the Dental Practice Act, Section 251.004, entitled Exceptions, Section 260.001, regarding administration of an estate and continuation of practice nor Sections 260.002 through 260.004, regarding employment of dentists.

Source Note: The provisions of this §108.70 adopted to be effective February 20, 2001, 26 TexReg 1494