(1) For the purpose of implementing the provisions of 37-1-316, MCA, the board further defines unprofessional conduct as follows:

(a) any representations to patients or prospective patients, whether communicated verbally, by advertisement, or through any other medium, that contains misstatements, falsehoods, distorted or fabulous statements, relative to:

(i) diagnosis, palpation, treatment, cure, or cost of services;

(ii) a fellow licensee, including statements which imply superiority over another licensee or health care professional; or

(iii) the licensee's particular abilities, qualifications, experience, features, or accomplishments regarding the licensee or the licensee's chiropractic practice.

(b) violating any provision of ARM 24.126.2304 regarding sexual misconduct or sexual relations with a patient;

(c) violating any state or federal statute or administrative rule regulating the practice of chiropractic including any statute or rule defining or establishing standards of patient care or professional conduct of practice;

(d) engaging in, or being involved in, "fee splitting" in which a licensee gives or receives payments or fees in referral of a patient to any professional or company offering payment in exchange for referrals to their products or services;

(e) soliciting or accepting, for services rendered, assigned payments from any third-party payer as payment in full, if the effect is to eliminate the need of payment by the patient of any required deductible or co-payment applicable on the patient's health benefit plan, except as hereinafter provided;

(f) billing charges or fees to a third-party payer or collecting from a third- party payer on behalf of a patient at a different rate than the charge or fee actually billed to or collected from the patient. In the case where services are provided at a reduced rate to a patient, any charge or fee billed to or collected from a third party must be based upon the actual reduced rate billed to the patient;

(g) engaging in, or providing services or treatments which are in excess of those warranted by either the patients' condition and response or the practice technique, methodology, or modality applied and are not consistent with the seriousness of diagnosis;

(h) participating in, or conducting, research projects on patients or the public without first obtaining written authorization from the board;

(i) failing to make reports and records available to the board upon request, failure to cooperate with a board investigation or knowingly giving false information to the board;

(j) performing an examination, chiropractic manipulation, or adjustment intra-vaginally;

(k) performing an adjustment intrarectally unless the following conditions are met:

(i) a written consent form is signed by the patient for each adjustment. The consent form must clearly offer external adjustment options;

(ii) the intra-rectal adjustment must be diagnosis related;

(iii) the adjustment is performed with the use of a disposable finger cot or rubber glove; and

(iv) a chaperone is present at all times the patient is examined and treated intrarectally.

(l) falsifying, altering, or making incorrect essential entries or failing to make essential entries of patient records;

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

(n) providing professional services while impaired by dangerous drugs or controlled substances;

(o) 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;

(p) failing to render adequate supervision, management, training, or control of auxiliary staff or other persons, including preceptors, temporary permit holders, and/or licensees practicing under the licensee's supervision or control according to generally accepted standards of practice;

(q) failing to cooperate with a board inspection or investigation in any material respect; or

(r) failing to keep adequate patient records that are legible and contain at a minimum:

(i) date of service;

(ii) pertinent history;

(iii) relevant symptomotology;

(iv) physical findings;

(v) results of diagnostic tests;

(vi) clinical assessment;

(vii) treatment procedures; and

(viii) patient progress.

(s) entering into a contract which would obligate a patient to pay for care to be rendered in the future, unless the contract provides that the patient is entitled to a complete refund for any care not received within a reasonable amount of time;

(t) charging or collecting a clearly excessive fee. In determining if a fee is clearly excessive the board shall consider the fee or range of fees customarily charged in the state for similar services in light of modifying factors such as the time required, the complexity of the service, and the skill requisite to perform the service properly. This subdivision does not apply if there is a clear written contract for a fixed fee between the physician and the patient that has been entered into before the service was provided;

(u) engaging in the practice of chiropractic when the licensee's license is inactive, has expired, or has been suspended or revoked.