§775. Unprofessional conduct defined

A. As used in this Chapter, "unprofessional conduct" means:

(1) Advertisement of fees for or of free dental services without:

(a) Fully disclosing all procedures to be included by the dentist in the advertised service, including but not limited to necessary diagnosis, radiographs, restorative treatment, laboratory fees, and post-operative care.

(b) Fully disclosing that procedures which are customarily included in the service are not included in the service offered for the advertised fee, if such is the case.

(c) Disclosing within the advertisement the name of the advertising dentist. If one member of an association/partnership advertises, the names of all partners and dentist employees must also appear therein. This is not to include the appearance of the names of those persons merely sharing space with the advertising dentist, but does include all dentists providing dental services to those responding to the advertisement.

(2) Not including in advertisements the name which appears on the license or renewal certificate of the dentist, the dentist's commonly used name, or the name which is authorized under Chapter 11 of Title 12 of the Louisiana Revised Statutes of 1950, as amended, relative to professional dental corporations or the use in advertisements of any name other than that which appears on the license or renewal certificate of the dentist, the dentist's commonly used name, or the name which is authorized under Chapter 11 of Title 12 of the Louisiana Revised Statutes of 1950, as amended, relative to professional dental corporations.

(3) Any communication about the dentist or the dentist's services which is false, misleading, or deceptive; or the omission of material information from any statement or claim about the dentist or the dentist's services.

(4)(a) Any communication for which the dentist does not have substantiation in hand at the time the claim is made.

(b) The failure to provide said substantiation or records of the content and dissemination of an advertisement to the board upon request.

(c) The failure to keep records of any communication or written statements and claims, including advertising copy, and substantiation for same for a period of two years from the date on which the particular statement or claim is made.

(5) Any communication which is likely to create an unjustified expectation about results the dentist can achieve, or which states or implies that the dentist can achieve results by means that violate this Chapter, the rules and regulations of the board, or other law.

(6) The practice of dentistry or the giving of a public demonstration of skill or methods of practicing dentistry in any place other than a clean, sanitary, and safe facility.

(7) Directly or indirectly offering, giving, receiving, or agreeing to receive any fee or other consideration to or from a third party for the referral of a patient in connection with the performance of a dental service.

(8) Advertising of denture prices which fails to include the following information:

(a) Whether or not the dentures are preformed or prefabricated.

(b) In the case of "immediate dentures", details of required adjustments and other necessary procedures, including charges to be made therefor.

(c) Fees for each different grade of denture which the advertiser may offer to persons who respond to the advertisement.

(d) The number of appliances included.

(e) The fact that the advertised price does not include upper and lower dentures, if such is the case. This disclosure must be made in type twice as large as any other type in a print advertisement or repeated three times in an audio advertisement at a decibel level no lower than the loudest level in the advertisement.

(9)(a) Advertising of dental services in any medium which does not contain the dentist's full name as it appears on the license or renewal certificate issued by the board or the dentist's commonly used name, address, and telephone number.

(b)(i) Intentionally releasing inaccurate or misleading information by a dentist to any source that promotes dissemination of inaccurate or misleading information about the dentist by, from, or through such source.

(ii) Failing to take immediate steps to request the correction of inaccurate or misleading information that has been released by a source pursuant to the source's relationship with the dentist.

(iii) For the purposes of this Subparagraph, "source" includes but is not limited to an insurance company, dental health maintenance organization, a dental preferred provider organization, Medicaid, dental discount company, or any other thirty party.

(c) Engaging or hiring an advertising agency or any other agency or person to prepare material to promote the dentist's professional dental services, and thereafter failing to review and approve the material before publication or release, unless the dentist can show the failure to review and approve the material was caused by the failure of the agency or person and not his own.

(10) The use of the name of any deceased or retired and licensed dentist or hygienist, or the name of any licensed dentist or hygienist with a disability, on any office door, directory, stationery, billhead, or any other means of communication any time after one year following the retirement from practice of the dentist or dental hygienist, or twenty-four months following the death or disability of the dentist.

(11)(a) The employment or engaging of the services of any person, firm, or corporation to construct, repair, furnish, supply, or reproduce a prosthetic appliance or any denture, orthodontic appliance, bridge, or other substitute for natural teeth without the dentist furnishing a written work order on a form approved by the board which shall contain:

(i) The name and address of the person, firm, or corporation to which the work order is directed.

(ii) The patient's name or identification number, and if number is used, the patient's name must be written upon duplicate copy retained by the dentist.

(iii) The date on which the work order was written.

(iv) A description of the work to be done, including diagrams if necessary.

(v) Specification of the type and quality of materials to be used.

(vi) The signature of the dentist and number of his license.

(b) The failure of the dentist to retain the original copy of such work orders so furnished for a period of two calendar years in addition to the current year.

(12) The use, in connection with the practice of dentistry, of any practice which is prohibited by law.

B.(1) Notwithstanding any provision of this Section, when it is required by this Section that an advertisement include the name of the advertising dentist, either as it appears on the license or renewal certificate of the dentist or the dentist's commonly used name, or the specialties of all dentists practicing within or under the name of a corporation, company, association, limited liability company, or trade name be disclosed in the advertisement, and the address and telephone number of the dentist, the requirements shall be deemed to be sufficiently satisfied if the names and specialties of all dentists practicing in, with, or under the corporation, company, association, limited liability company, or trade name and the address and telephone number are made available on an internet website fully disclosed in the advertisement, or are provided without delay to any individual requesting the information by contacting the advertiser at a telephone number also disclosed in the advertisement.

(2) Whenever any advertisement is run by or on behalf of a corporation, company, association, limited liability company, or trade name, each dentist practicing in, with, or under the corporation, company, association, limited liability company, or trade name shall be responsible for the content of the advertisement unless an individual dentist practicing in, with, or under the corporation, company, association, limited liability company, or trade name, advises the board in writing prior to the time the board takes any action regarding the advertisement that he assumes sole responsibility for the advertisement. If an individual dentist assumes sole responsibility for the advertisement pursuant to the provisions of this Paragraph, no other dentist shall be responsible for such advertisement.

(3) In order to assist an advertising dentist in determining which language in a communication constitutes unprofessional conduct under Paragraphs (A)(3), (4), and (5) of this Section, whenever the board determines that an advertisement constitutes unprofessional conduct under Paragraphs (A)(3), (4), or (5) of this Section, unless the communication is a clear violation or the communication involves a general dentist suggesting or implying that he is a specialist, before taking any further action pursuant to R.S. 37:776 and 780, the board shall notify the advertising dentist by mail of its determination and the specific portion of the advertisement that constitutes unprofessional conduct. The dentist shall have thirty days from the date of receipt of the notice by the dentist to correct the portions of the advertisement in violation and submit to the board proof of the correction. If the advertisement is corrected to remove the violation within thirty days of receipt of notice, the board shall take no further action against the advertising dentist for unprofessional conduct with regard to the advertisement. In the event an advertisement cannot be corrected within the thirty days, it shall be deemed sufficient if the dentist submits proof to the board within thirty days of receipt of notice that he has directed that the correction be made at the next publication date. Pursuant to the provisions of this Paragraph, a dentist shall have this right to correct an advertisement deemed by the board to be unprofessional conduct under Paragraphs (A)(3), (4), or (5) of this Section only the first two times notified of such violation; there shall be no right to correct a third or any subsequent violation, whether for the same advertisement or for a subsequent advertisement. If an advertisement is run by or on behalf of a corporation, company, association, limited liability company, or trade name, the aforementioned right to correct shall be limited to two times, regardless of the number of dentists in or associated with the corporation, association, limited liability company, or trade name.

C.(1) Any dentist who wishes to advertise may submit a copy of the proposed advertisement to the board for an advisory opinion on whether the advertisement complies with the requirements of the statutes and rules applicable to dental advertising in Louisiana.

(2) To request the review of a proposed advertisement for an advisory opinion from the board, a dentist shall submit the following to the board at least thirty days in advance of the desired opinion date:

(a) A copy of the advertisement or communication in the form or forms in which it is to be disseminated that is readily capable of duplication by the board, including but not limited to videotapes, audiotapes, print media, and photographs of outdoor advertising.

(b) A typewritten transcript of the advertisement or communication, if any portion of the advertisement or communication is on videotape, audiotape, electronic or digital media, or otherwise not embodied in written or printed form.

(c) A printed copy of all text used in the advertisement.

(d) An accurate English translation, if the advertisement appears or is audible in a language other than English.

(e) If the communication is to be mailed, a sample envelope in which the written communication will be enclosed.

(f) A statement listing all media in which the advertisement or communication will appear, the anticipated frequency of use of the advertisement or communication in each medium in which it will appear, and the anticipated time period during which the advertisement or communication will be used.

(g) Any additional information requested by the board.

(h) The fee for the review of proposed advertising as provided by law.

(3) The advisory opinion issued by the board, though not conclusive, may be used as evidence in any disciplinary proceeding by the board in which an advertising violation is alleged.

(4) If the board subsequently finds that an advertisement determined to be in compliance with the provisions of this Chapter in a prior advisory opinion issued by the board pursuant to this Subsection is in violation of any provision of this Chapter, the board may require the dentist to change or remove the advertisement. The board shall not take any further action against the dentist unless the dentist fails to take steps either to bring the advertisement into compliance with the provisions of this Chapter or remove the advertisement within thirty days after receipt of notification of the violation.

Amended by Acts 1962, No. 17, §6; Acts 1977, No. 325, §2; Acts 1987, No. 733, §1; Acts 1995, No. 920, §1; Acts 2001, No. 199, §1, eff. May 31, 2001; Acts 2010, No. 111, §1, eff. June 8, 2010; Acts 2014, No. 811, §19, eff. June 23, 2014; Acts 2014, No. 856, §1, eff. June 23, 2014; Acts 2015, No. 214, §1.