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For the purpose of implementing the provisions of Title 37, chapter 1, MCA, and in addition to the unprofessional conduct provisions set forth at 37-1-316 , MCA, the board defines unprofessional conduct as follows:

(1) the use in advertising or otherwise, of the words "prescribe" or "prescription" or any abbreviation, variation or derivative thereof or symbol therefore in referring to or in describing any industry product unless such product was made pursuant to a prescription given by a physician; provided, however, that the word "prescription" or words of similar meaning may be used to refer to or describe an industry product which was specifically made to compensate for the hearing loss of a particular purchaser in accordance with the directions furnished by a qualified person other than a physician when such words are accompanied by a clear and conspicuous disclosure that the "prescription" was not based on a medical examination and that the person issuing it was not a physician;

(2) initiating contact by telephone, without the dispenser first identifying himself by name and company he represents, or making more than one such contact unless further contact is specifically requested by the patient;

(3) contacting a person who already has a hearing aid still under warranty, more than once, unless contact is made by the original dispenser, or further contact is specifically requested by the patient;

(4) use of a contract which does not comply with the board's rules on contract content;

(5) engaging in a home solicitation sale without complying with the statutory requirements of the Door to Door Sales Act as set out in 30-14-501 , et seq., MCA;

(6) failing to comply with the provisions of Title 37, chapter 16, MCA, or any rule promulgated thereunder;

(7) failing to comply with FDA regulations found at 16 CFR 429.1, 21 CFR 801.420 and 801.421;

(8) failing to follow FDA recommendation as set forth in the warning statement in 21 CFR 801.420(c)(2);

(9) filing a complaint with, or providing information to, the board which the licensee knows, or ought to know, is false or misleading (does not apply to any filing of a complaint or providing information to the board when done in good faith);

(10) violating any state, federal, provincial or tribal statute or administrative rule governing or affecting the professional conduct of any licensee;

(11) using any dangerous drug or controlled substance illegally while providing professional services;

(12) 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;

(13) performing services outside of the licensee's area of training, expertise, competence or scope of practice or licensure, including but not limited to:

(a) the purposeful removal of cerumen from a patient's ear is unprofessional conduct;

(14) failing to obtain an appropriate consultation or make an appropriate referral when the problem of the patient is beyond the licensee's training, experience or competence;

(15) promoting for personal gain any drug, device, treatment, procedure, product or service which is unnecessary, ineffective or unsafe;

(16) failing to render adequate supervision, management, training or control of auxiliary staff or other persons, including licensees practicing under the licensee's supervision or control, according to generally accepted standards of practice;

(17) discontinuing professional services unless services have been completed, the patient requests the discontinuation, alternative or replacement services are arranged or the patient is given reasonable opportunity to arrange alternative or replacement services;

(18) delegating a professional responsibility to a person when the licensee knows, or has reason to know, that the person is not qualified by training, experience, license or certification to perform the delegated task;

(19) accepting, directly or indirectly, employment from any person who is not licensed to practice the profession or occupation, or who is not licensed or authorized to operate a professional practice or business;

(20) failing to obtain informed consent from patient or patient's representative prior to selling a hearing aid, particularly in situations where the patient's competency is at issue;

(21) physical or verbal abuse of a client, or sexual contact with a patient;

(22) failing to account for funds received in connection with any services rendered or to be rendered;

(23) failing to supply continuing education documentation as requested by the audit procedure set forth in ARM 24.150.2201 or supplying misleading, incomplete or false information relative to continuing education taken by the licensee.

History: 37-1-131, 37-1-319, 37-16-202, MCA; IMP, 37-1-131, 37-16-202, 37-16-411, MCA; NEW, Eff. 9/4/74; AMD, Eff. 9/4/75; TRANS, from Dept. of Prof. & Occup. Lic. , Ch. 274, L. 1981, Eff. 7/1/81; AMD, 1986 MAR p. 202, Eff. 2/14/86; AMD, 1989 MAR p. 1840, Eff. 11/10/89; AMD, 1993 MAR p. 534, Eff. 4/16/93; AMD, 1997 MAR p. 832, Eff. 5/6/97; AMD, 1999 MAR p. 343, Eff. 2/26/99; AMD, 2000 MAR p. 2514, Eff. 9/22/00; TRANS, from Commerce, 2002 MAR p. 395; AMD, 2004 MAR p. 328, Eff. 2/13/04.

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