TITLE 16 OCCUPATIONAL
AND PROFESSIONAL LICENSING
CHAPTER 5 DENTISTRY
(DENTISTS, DENTAL HYGIENISTS, ETC.)
PART 30 DENTAL
HYGIENISTS, DISCIPLINARY PROCEEDINGS, LICENSE
REVOCATION
OR
SUSPENSION FOR DISCIPLINARY ACTIONS
16.5.30.1 ISSUING
AGENCY: New Mexico Board of Dental Health Care.
[16.5.30.1 NMAC - Rp, 16.5.30.1 NMAC, 12/14/2019]
16.5.30.2 SCOPE: The
provisions of 16.5.30 NMAC apply to all active license holders and applicants
for licensure. These provisions may also
be of interest to anyone who may wish to file a complaint against a licensed
dental hygienist.
[16.5.30.2 NMAC - Rp, 16.5.30.2 NMAC, 12/14/2019]
16.5.30.3 STATUTORY
AUTHORITY: 16.5.30 NMAC is promulgated pursuant to the
Dental Health Care Act, Section 61-5A-21, NMSA 1978, (Repl.
Pamp. 1996).
[16.5.30.3 NMAC - Rp, 16.5.30.3 NMAC, 12/14/2019]
16.5.30.4 DURATION:
Permanent.
[16.5.30.4 NMAC - Rp, 16.5.30.4 NMAC, 12/14/2019]
16.5.30.5 EFFECTIVE
DATE: December 14, 2019, unless a later date is
cited at the end of a section.
[16.5.30.5 NMAC - Rp, 16.5.30.5 NMAC, 12/14/2019]
16.5.30.6 OBJECTIVE: To
establish the procedures for filing complaints against licensees, the
disciplinary actions available to the board, the authority to issue
investigative subpoenas and to further define actions by a licensee which are
considered incompetent or unprofessional practice.
[16.5.30.6 NMAC - Rp, 16.5.30.6 NMAC, 12/14/2019]
16.5.30.7 DEFINITIONS:
A. “Addiction” means a neurobehavioral
syndrome with genetic and environmental influences that result in psychological
dependence on the use of substances for their psychic effects. It is characterized by behaviors that include
one or more of the following: impaired
control over drug use; compulsive use; continued use despite harm; and craving.
B. “Chronic pain” means a pain state which
is persistent and in which the cause of the pain cannot be removed or otherwise
treated.
C. “Direct reference” means a phone number
or website where names and contact information of the dental hygienists(s) can
be referenced.
D. “Drug abuser” means a person who takes
a drug or drugs for other than legitimate medical purposes.
E. “Pain” means an unpleasant sensory and
emotional experience associated with inflammation or with actual or potential
tissue damage, or described in terms of such inflammation or and damage.
F. “Patient abandonment” means withdrawing
a patient from treatment without giving reasonable notice or providing a
competent replacement provider.
G. “Physical dependence” means a state of
adaptation that is manifested by a drug-specific withdrawal syndrome that can
be produced by abrupt cassation, rapid dos reduction, decreasing blood level of
the drug, administration of an antagonist, or a combination of these.
H. “Tolerance” means a state of adaptation
in which exposure to a drug induces changes that result in a diminution of one
or more of the drug’s effects over time.
[16.5.30.7 NMAC - Rp, 16.5.30.7 NMAC, 12/14/2019]
16.5.30.8 COMPLAINTS:
Disciplinary proceedings may be instituted by sworn complaint of any
person, including members of the board and committee. Any hearing held pursuant to the complaint
shall conform with the provisions of the Uniform
Licensing Act, the Dental Health Care Act and the Impaired Dentists and Dental
Hygienists Act.
[16.5.30.8 NMAC - Rp, 16.5.30.8 NMAC, 12/14/2019]
16.5.30.9 ACTIONS:
A. The committee
may assess fines, deny, revoke, suspend, stipulate, or otherwise limit a
license if it is determined the licensee is guilty of violating any of the
provisions outlined in the act, the Uniform Licensing Act, the Impaired
Dentists and Hygienists Act, or these rules.
B. The committee
may reprimand, censure, or require licensees to fulfill additional continuing
education hours within limited time constraints for violations of the act or
rules.
C. The committee
shall take into consideration the dual role of dental hygienists as
professionals and employees when taking disciplinary action against a
licensee. In the event the complaint is
ruled to be based primarily in the role of employee, the committee may share
the findings with the board so appropriate action may be considered for the
employer/dentist.
[16.5.30.9 NMAC - Rp, 16.5.30.9, 12/14/2019]
16.5.30.10 GUIDELINES: The
committee shall define 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 patient treatment.
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 hygiene
profession;
(2) failure to advise the patient in simple understandable terms
of the treatment rendered, the expectations for success, and the responsibility
the patient must assume;
(3) failure to inform dentist or patient of periodontal
assessment;
(4) failure to provide patient education of oral health care
regimens which assist in maintaining good oral health throughout life;
(5) sexual misconduct;
(6) failure to use appropriate infection control techniques and
sterilization procedures;
(7) breach of ethical standards, an inquiry into which the
committee will begin by reference to the most recent version of the American
dental hygienists association’s code of ethics;
(8) fraud, deceit or misrepresentation in any application;
(9) violation of any order of the committee, and ratified by the
board, including any probation order;
(10) injudicious administration of any drug or medicine;
(11) failure
to report to the committee or 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
hygiene or professional association or society, in lieu of, and while under
disciplinary investigation by any authority;
(12) deliberate
and willful failure to reveal, at the request of the committee, the
incompetent, dishonest, or corrupt practices of a dentist or dental hygienist
licensed or applying for licensure by the committee or board; and
(13) cheating on an examination for licensure;
(14) failure of a dental hygienist to comply with advertising rules
in 16.5.1.29 NMAC;
(15) failure of a collaborative practice dental hygienists to
refer a patient for dental care; or
(16) failure of a collaborative practice dental hygienist to
comply with the terms of a signed collaborative practice agreement;
(17) failure of a collaborative practice dental hygienist to
professionally and effectively communicate with a patients dentist of record,
or consulting dentist, in a professional manner in regard to a shared patient's
care under 16.5.17 NMAC of these rules;
(18) failure of a collaborative dental hygienist to comply with
the advertisement rules as defined in 16.5.1.29 NMAC;
(19) failure
to practice dental hygiene 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;
(20) failure
to practice dental collaborative hygiene without displaying his/her full name
as it appears on the license issued by the board on the entrance door of each
office;
(21) assisting
a health professional, or be assisted by a health professional that is not
licensed to practice by a New Mexico board, agency or commission;
(22) conviction of either a misdemeanor or a felony punishable by
incarceration;
(23) aiding and abetting a dental auxiliary who is not properly
certified;
(24) patient abandonment;
(25) habitually
addicted as defined in Paragraph (4) & (6) of Subsection A of Section 61.5A-21
and Subsections C and D of Section 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;
(26) failure
of the licensee to furnish the committee within 10 business days of request;
its investigators or representatives with information requested by the
committee, and ratified by the board;
(27) failure to appear before the board when requested by the
committee, and ratified by the board, in any disciplinary proceeding; and
(28) failure to be in compliance with the Parental Responsibility
Act Section 40-5A-3 seq., NMSA1978.
[16.5.30.10 NMAC - Rp, 16.5.30.10 NMAC, 12/14/2019]
16.5.30.11 INVESTIGATIVE
SUBPOENAS: The complaint committee of the committee is
authorized to issue action investigative subpoenas and to employ experts with
regard to pending investigations.
[16.5.30.11 NMAC - Rp, 16.5.30.11 NMAC, 12/14/2019]
16.5.30.12 REVOCATION
OF COLLABORATIVE LICENSE FOR DISCIPLINARY ACTIONS: A
collaborative practice licensee whose license is revoked for disciplinary
actions shall:
A. provide proof of
written notification of practice closure to all patients currently under active
treatment;
B. notification to
patients should include where and how dental treatment records may be obtained
and contact information for dentists available; and
C. provide to the
board the location where all active dental treatment records will be maintained
for a minimum of six years; active treatment records are records of patients
treated in the two years previous to the date of closure; the notification to
the board shall include the name, address, and telephone number of the person
who is serving as the custodian of the records.
[16.5.30.12 NMAC - Rp, 16.5.30.12 NMAC, 12/14/2019]
16.5.30.13 REINSTATEMENT
OF REVOKED LICENSE FOR DISCIPLINARY ACTIONS: A licensee whose license has been revoked for disciplinary actions may
request reinstatement of the license after the terms of the settlement
agreement have been met. Upon approval
from the committee, and ratified by the board, and receipt of the request for
reinstatement, board staff shall send an application for reinstatement of license.
A. Along with the
completed application, the request for reinstatement shall include the
reinstatement fee, the triennial renewal fee, impairment fee, and proof of the
following continuing education courses:
(1) 20
hours of approved continuing education courses related to the clinical practice
of dental hygiene, per year of revocation; at least 20 of these hours shall be
in the 12 months previous to the request;
(2) proof
of current basic life support (BLS) or cardiac pulmonary resuscitation (CPR)
certification accepted by the American heart association, the American red
cross, or the American safety and health institute (ASHI); cannot be a
self-study course;
(3) proof of infection control course within the past 12 months;
and
(4) 45
hours of continuing education required for the last triennial renewal cycle of
active licensure; these hours may include continuing education identified at
the time of revocation as well as any continuing education taken during the
revoked period.
B. Applicant shall
authorize the American association of dental examiners clearinghouse to send
verification of status directly to the board office.
C. The board will
obtain electronic verification of applicant status from the national
practitioners’ data bank.
D. Verification of
licensure in all states where the applicant holds or has held a license to
practice dental hygiene, or other health care profession. Verification shall be sent directly to the
board office from the other state(s) board, shall include a raised seal, and
shall attest to the status, issue date, expiration date, license number, and
other information contained on the form.
E. The board at the
next regularly scheduled meeting shall review the request for reinstatement,
including a statement of the applicant's activities during the period of
revocation and information on any existing impairment. If the board finds the application in order
and is satisfied the applicant has fulfilled all required continuing education,
the license may be reinstated and the previous license number reassigned. The reinstated license will expire as defined
in 16.5.11 NMAC.
F. A dental
hygienist with a license in revocation status may not practice dental hygiene
in New Mexico until proof of active licensure is received from the board
office.
G. If reinstatement
of a revoked license is not requested within three years after settlement
agreement has been met, application for a new license shall be made by
examination or credentials in order to practice dental hygiene in New Mexico.
[16.5.30.13 NMAC - Rp, 16.5.30.13 NMAC, 12/14/2019]
16.5.30.14 REINSTATEMENT
OF SUSPENDED LICENSE FOR DISCIPLINARY ACTIONS: For licenses suspended for greater than six months; a licensee whose
license has been suspended for disciplinary actions in addition to meeting the
terms of the settlement agreement shall also meet the following conditions
before reinstatement of licensure:
A. verification of
licensure in all states where the applicant holds or has held a license to
practice dental hygiene, or other health care profession; verification shall be
sent directly to the board office from the other state(s) board, shall include
a raised seal, and shall attest to the status, issue date, expiration date,
license number, and other information contained on the form;
B. the board at the
next regularly scheduled meeting shall review the request for reinstatement,
including a statement of the applicant's activities during the period of
suspension and information on any existing impairment; the reinstated license
will expire as defined in 16.5.11 NMAC; and
C. a dental
hygienist with a license in suspended status may not practice dental hygiene in
New Mexico until proof of active licensure is approved by the board and issued
by the board office.
[16.5.30.14 NMAC - Rp, 16.5.30.14 NMAC, 12/14/2019]
HISTORY OF 16.5.30 NMAC:
Pre-NMAC History:
Material in this
part was derived from that previously filed with the commission of public
records - state records center and archives as:
BDE 69-1, Rules and
Regulations of the New Mexico Board of Dental Examiners, filed 8/14/1969;
BDE 70-1, Rules and
Regulations of the New Mexico Board of Dental Examiners, filed 9/21/1970;
BDE 73-1, Rules and
Regulations of the New Mexico Board of The New Mexico Board of Dentistry, filed
2/12/1973;
Article XIII,
Disciplinary Proceedings, filed 3/11/1981;
Article XIII,
Disciplinary Proceedings, filed 1/12/1982;
Article XIII,
Disciplinary Proceedings, filed 3/30/1982;
BOD Rule 11,
Disciplinary Proceedings, filed 2/9/1989;
BODHC Rule DH 10-95,
Dental Hygienists, Disciplinary Proceedings, filed 5/5/1995.
History of
Repealed Material:
BDE 73-1, Rules and
Regulations of the New Mexico Board of Dentistry (filed 2/12/1973) repealed by
Article XIV, filed 3/12/1981.
16.5.30 NMAC, Dental
Hygienists, Disciplinary Proceedings, License Revocation or Suspension for
Disciplinary Actions filed 12/9/2011, Repealed effective 12/14/2019.
Other History:
BODHC Rule DH 10-95,
Dental Hygienists, Disciplinary Proceedings (filed 5/5/1995) was renumbered,
reformatted and amended into the first version of NMAC as 16 NMAC 5.30, Dental
Hygienists, Disciplinary Proceedings, effective 9/30/1996.
16 NMAC 5.30, Dental
Hygienists, Disciplinary Proceedings (filed 9/17/1996) was renumbered, reformatted and amended to
16.5.30 NMAC, Dental Hygienists, Disciplinary Proceedings, effective 12/14/2000.
16.5.30 NMAC, Dental
Hygienists, Disciplinary Proceedings, License Revocation or Suspension for
Disciplinary Actions filed 12/9/2011 was replaced by 16.5.30 NMAC, Dental
Hygienists, Disciplinary Proceedings, License Revocation or Suspension for
Disciplinary Actions, effective 12/14/2019.