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 13, MCA:

(1) Commission of an act of sexual abuse, misconduct or exploitation. Each of the following acts constitutes sexual abuse, misconduct or exploitation, even where the patient is perceived as seductive:

(a) physical or verbal sexual contact or intercourse during the course of the professional relationship, whether in or out of the practitioner's place of business;

(b) failure to maintain appropriate boundaries;

(c) failure to provide the patient with an opportunity to undress and dress in private;

(d) failure to provide the patient with the opportunity to wear underwear or a patient gown during treatment;

(e) failure to fully drape all parts of the patient's body except that being treated; failure to obtain informed verbal consent before undraping or treating the patient's breasts, buttocks, abdomen or genitals;

(f) use of inappropriate parts of the practitioner's body to brace the patient;

(g) palpation by other than the practitioner's hands; palpation beyond that which is necessary to accomplish a competent examination or treatment;

(h) sexual repartee, innuendo, jokes or flirtation;

(i) sexual comments about the patient's person or clothing;

(j) inquiry into the patient's sexual history or behavior beyond that which is necessary for a competent examination, diagnosis or treatment. The practitioner shall not be unnecessarily intrusive; the practitioner shall not verbalize any value judgment concerning the patient's sexual history or behavior;

(k) attempting to diagnose or treat a sexual issue beyond the practitioner's scope of training or practice;

(l) failure to refer a case of suspected sexual abuse for more specialized professional help;

(2) Failure to obtain informed consent for treatment. In order to obtain informed consent, the practitioner must give the patient at least:

(a) a description of the proposed treatment, including:

(i) the body part to be treated,

(ii) the type of treatment,

(iii) the possible sensations the patient might feel,

(iv) the duration of treatment, and

(v) the possible outcome of the treatment;

(b) the practitioner's reason or rationale for the treatment proposed;

(c) the choice to accept or reject the proposed treatment, or any part of it, before or during the treatment.

(3) Failure to maintain appropriate patient charts in the English language;

(4) Failure to utilize sterile needle technique, as articulated by the National Commission for the Certification of Acupuncturists, or its successor;

(5) 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;

(6) Fraud, misrepresentation, deception or concealment of a material fact in applying for or securing a license, or license renewal, or in taking an examination required for licensure; as used herein, "material" means any false or misleading statement or information;

(7) Conduct likely to deceive, defraud or harm the public;

(8) 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;

(9) 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;

(10) Use of a false, fraudulent or deceptive statement in any document connected with the practice of acupuncture;

(11) Having been subject to disciplinary action of another state or jurisdiction against a license or other authorization to practice acupuncture, based upon acts or conduct by the licensee similar to acts or conduct that would constitute grounds for disciplinary action under Title 37, chapter 13, MCA, or these rules; a certified copy of the record of the action taken by the other state or jurisdiction is evidence of unprofessional conduct;

(12) Willful disobedience of a rule adopted by the board, or an order of the board regarding enforcement of discipline of a licensee;

(13) 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;

(14) Failing to furnish to the board or its investigators or representatives information legally requested by the board;

(15) Failing to cooperate with a lawful investigation conducted by the board;

(16) Failing to report to the board any adverse judgment, settlement or award arising from an acupuncture liability claim or other unprofessional conduct;

(17) 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;

(18) Abusive billing practices;

(19) Testifying in court on a contingency basis;

(20) Conspiring to misrepresent or willfully misrepresenting a medical condition improperly to increase or decrease a settlement, award, verdict or judgment;

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

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

(b) 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;

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

(i) 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 acupuncturist's independent judgment in the practice of acupuncture;

(ii) the acupuncturist's independent judgment in the practice of acupuncture must in fact be unaffected by the relationship; and

(iii) the acupuncturist may not be required to refer any patient to a particular provider or supplier or take any other action that the acupuncturist determines not to be in the patient's best interest;

(22) Failing to transfer pertinent and necessary patient 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;

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