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(1) In addition to those forms of unprofessional conduct defined in 37-1-316, MCA, the following is unprofessional conduct for a licensee or license applicant under Title 37, chapter 20, MCA:

(a) conviction, including conviction following a plea of nolo contendere of an offense involving moral turpitude, whether misdemeanor or felony, and whether or not an appeal is pending;

(b) conduct likely to deceive, defraud, or harm the public, including, but not limited to, practicing while subject to a physical or mental condition which renders the licensee unable to safely engage in the practice of medicine;

(c) making a false or misleading statement regarding the licensee's skill or the effectiveness or value of the medicine, treatment, or remedy prescribed by the licensee or at the licensee's direction in the treatment of a disease or other condition of the body or mind;

(d) resorting to fraud, misrepresentation, or deception in the examination or treatment of a person; or in billing, giving, or receiving a fee related to professional services; or reporting to a person, company, institution, or organization, including fraud, misrepresentation, or deception with regard to a claim for benefits under Title 39, chapter 71 or 72, MCA;

(e) violation of any section in Title 37, chapter 20, MCA, and/or any rule adopted by the board to implement Title 37, chapters 1 or 20, MCA, any order of the board regarding enforcement of discipline of a licensee, or any term, condition, or limitation imposed on the licensee in a utilization plan;

(f) habitual intemperance or excessive use of an addictive drug, alcohol, or any other substance to the extent that the use impairs the user physically or mentally; this provision does not apply to a licensee who is maintaining an approved therapeutic regimen as described in 37-3-203, MCA;

(g) failing to furnish to the board or its investigators or representatives information legally requested by the board;

(h) failing to cooperate with a lawful investigation conducted by the board;

(i) failing to report to the board any adverse judgment, settlement, or award arising from a medical liability claim or other unprofessional conduct;

(j) obtaining a fee or other compensation, either directly or indirectly, by the misrepresentation that a manifestly incurable disease, injury, or condition of a person can be cured;

(k) commission of an act of sexual abuse, misconduct, or exploitation related to the licensee's practice of medicine. The use of or the failure to use a chaperone for patient encounters in which the potential for sexual exploitation exists shall be considered in evaluating complaints of sexual exploitation related to the licensee's practice of medicine;

(l) administering, dispensing, prescribing, or ordering a controlled substance, as defined by the federal Food and Drug Administration or successors, other than in the course of legitimate or reputable professional practice;

(m) conviction or violation of a federal or state law regulating the possession, distribution, or use of a controlled substance, as defined by the federal Food and Drug Administration or successors, whether or not an appeal is pending;

(n) testifying in a legal proceeding on a contingency basis;

(o) conspiring to misrepresent or willfully misrepresenting medical conditions improperly to increase or decrease a settlement, award, verdict, or judgment;

(p) except as provided in this subsection, practicing medicine as the partner, agent, or employee of, or in joint venture with, a person who does not hold a license to practice medicine within this state; however, this does not prohibit:

(i) the incorporation of an individual licensee or group of licensees as a professional service corporation under Title 35, chapter 4, MCA; or

(ii) the organization of a professional limited liability company under Title 35, chapter 8, MCA, for the providing of professional services as defined in Title 35, chapter 8, MCA; or

(iii) practicing medicine as the partner, agent or employee of, or in joint venture with, a hospital, medical assistance facility or other licensed health care provider; however,

(A) the partnership, agency, employment, or joint venture must be evidenced by a written agreement containing language to the effect that the relationship created by the agreement may not affect the exercise of the physician's independent judgment in the practice of medicine; and

(B) the physician's independent judgment in the practice of medicine must in fact be unaffected by the relationship; and

(C) neither the physician nor the physician assistant may be required to refer any patient to a particular provider or supplier or take any other action that the physician or physician assistant determines not to be in the patient's best interest;

(q) failing to transfer pertinent and necessary medical records to another licensed health care provider, the patient, or the patient's representative when requested to do so by the patient or the patient's legally designated representative, in accordance with Title 50, chapter 16, MCA;

(r) promoting the sale of services, goods, appliances, or drugs in such a manner as to exploit the patient for the financial gain of the licensee or a third-party;

(s) willfully harassing, abusing, or intimidating a patient, either physically or verbally;

(t) failing to maintain a record for each patient which accurately reflects the evaluation, diagnosis, and treatment of the patient;

(u) failing to exercise appropriate supervision over persons who provide health care under the supervision of the licensee;

(v) acting in such a manner as to present a danger to public health or safety, or to any patient including, but not limited to, incompetence, negligence, or malpractice;

(w) having voluntarily relinquished or surrendered a professional or occupational license, certificate, or registration in this state, or in another state or jurisdiction;

(x) having withdrawn an application for licensure, certification, or registration while under investigation or prior to a determination of the completed application in this state, or in another state or jurisdiction;

(y) failing to furnish to the board or its designee information requested by the board;

(z) filing a complaint with, or providing information to, the board which the licensee knows, or ought to know, is false or misleading. This provision does not apply to any filing of a complaint or providing information to the board when done in good faith under 37-1-308, MCA;

(aa) commission of any act of sexual abuse, misconduct, or exploitation by the licensee, whether or not related to the practice;

(ab) falsifying and altering patient records, intentionally documenting patient records inaccurately, failing to appropriately and timely document patient records;

(ac) diversion of a medication for any purpose or a violation of state or federal laws governing the administration of medications;

(ad) failing to comply with any agreement with the board, required by the board, or with the endorsed professional assistance program contracted by the board, the licensee has entered into;

(ae) failing to submit to the board a completed supervision agreement prior to commencing physician assistant practice in Montana;

(af) failing to maintain and/or provide copies on request, pursuant 37-1-301, MCA, of the physician assistant's current duties and delegation agreement; and

(ag) any other act, whether specifically enumerated or not, that in fact constitutes unprofessional conduct.

History: 37-1-319, 37-20-202, MCA; IMP, 37-1-319, 37-3-202, 37-20-403, MCA; NEW, 1995 MAR p. 2480, Eff. 11/23/95; AMD, 1999 MAR p. 277, Eff. 2/12/99; TRANS, from Commerce, 2001 MAR p. 1471; AMD, 2006 MAR p. 1958, Eff. 8/11/06; AMD, 2014 MAR p. 2833, Eff. 11/21/14.

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