Players Continue To Receive Bad Advice

Recently, we have become aware of instances where professonal players have received some very bad business advice. Whether your professional career takes you to the juniors, minor leagues or to the big show, you have critical personal and professional questions that you most have answered by your business advisors.

As you engage in and continue with your professional career, below is a list of specific items that you should be aware of and consult regularly with your business advisors on:

Integrated Planning

•Tax planning and compliance

•Life and estate planning

•Estate, tax and financial plans

•Cost analysis

•Multi-generational planning

Lifestyle Management

•Bill paying and payroll

•Cash flow management

•Business and succession planning

•Property management

Risk Management

•Liability management

•Bank financing

•Insurance analysis and oversight

Data Aggregation

•Consolidated statements/analysis/ Partnership accounting

Philanthropy and Foundations

•Philanthropic mission

•Foundation management

Potentia Legal Risks Associated With Online Coupon Advertising

Potential Legal Risks Associated with Online Coupon Advertising

With the explosion of social media and online marketing some dentistries are seeking out the services of SEO companies like The SEO Dentist Services to help them grow their business. But members of the dental community “must” be aware of the risks associated with the new marketing. While dental practices have successfully utilized the services of online coupon companies to attract new patients, there are growing concerns regarding this type of marketing. The American Dental Association has recently published its opinion on the online coupon advertising issue. Before a dentist participates in an online coupon marketing campaign, they must be aware of potential ramifications.

When considering advertising through one of the many online coupon marketing companies, a dentist must consider potential ramifications under state law, federal law, provisions of contracts with third-party payors, and professional ethical rules. The main areas of concern in these arenas are the potential for criminal and civil penalties that may arise by offering gifts, discounts, and fee-splitting in exchange for patient referrals.

Many states have laws in place restricting dentists from offering rewards to others for patient referrals or from splitting a portion of revenue generated from patient services. Additionally, the federal anti-kickback statute generally prohibits dentists’ from offering or paying remuneration to induce others to refer patients that may be eligible for services under a federal healthcare program, including Medicare or Medicaid.

Operation of Online Coupon Advertising Companies

With the explosion of social media and online marketing, several new advertising companies have recently sprung to success. These advertising companies offer the advantage to dentists by requiring no up-front advertising fees. Rather, the advertising company posts advertisements on its website for coupons, along with a brief review of the practice advertised, and information about the coupon offered.

If a patient wants a coupon, they purchase it directly from the advertising company, which keeps a certain percentage of the sales price and passes the remaining money on to the dental practice owner. The advertised practice relies on the total volume of coupons sold and retention of some purchasers as future patients. While this strategy may work well for some businesses, dentists and other medical professionals may risk severe penalties under state and federal law, as well as the violation of ethical guidelines, for participation in these programs.

Referral Gifts

Many states have laws that directly or indirectly restrict the award of gifts as a means of soliciting dental patients. Some of these laws provide for a broad prohibition making any gifts unlawful, while others may limit the dentist’s use of gifts and rewards only to nominal amounts. Depending on state law, referral gifts may include cash, gift cards, premiums, rebates, discounts, event tickets, or other items or things of value. While items like event tickets may not be commonly thought of as a rebate, some states may interpret items of this nature as offsetting the patient’s fees, making them improper gifts. Because the advertising company receives a fee for each patient that purchases a coupon, that payment may be deemed a referral gift under state law.

Anti-Kickback Statute

The federal anti-kickback statute, 42 U.S.C. §1320a-7b(b), prohibits dentists from offering and paying any remuneration to any person to induce them to refer an individual for the furnishing of a service for which payment may be made under a federal healthcare program (including Medicare and Medicaid).

Dentists giving gifts to others as a means of soliciting patients may run afoul of this provision if they provide services payable by a federal healthcare program. The Patient Protection and Affordable Care Act, passed in 2010, made it clear that, for a dentist to be found guilty, the government is not required to prove that the dentist knew that they were breaching a legal duty in providing a kickback, but only that they intended to perform the act that violated the law.

Additionally, because the statute refers to payments that “may be” under a federal healthcare program, a dentist who accepts such payments may be in violation of the law even if payment for the services at issue was not made by a Medicare or Medicaid patient or out of federal funds.

Fee Splitting

Many states have laws prohibiting fee splitting between dentists and third parties. Depending on the particular state, “fee splitting” may be defined as broadly as “giving or receiving rebates” and as narrowly as “any unearned rebate, refund, commission, preference, patronage, dividend, discount, or other unearned consideration, whether in the form of money or otherwise.”

Generally, however, fee splitting occurs when a dentist gives or divides a portion of a fee with another person. Additionally, some states allow certain exceptions to their fee splitting laws to allow dentists more flexibility in managing professional relationships within their office space and advertising.

When a dentist participates in an online coupon advertising campaign, the dentist generally splits the revenue generated from the promotion with the advertising company. The advertising company will take the payment from customers, keep a portion of that payment itself, and pass a portion of the sales proceeds along to the dentist.

As in other businesses, the dentist then relies on retention of a certain percentage of patients for follow-up visits, in order to profit from the coupon advertising campaign. If it is determined that the advertising company secured or solicited patients for the dentist in exchange for money, the dentist may be held in violation of state fee splitting laws.

The dentist may also be found in violation of federal law under the anti-kickback statute as a result of paying the advertising company cash to induce the company to refer a patient for services for which payment may be made under a federal program. Like some state laws, the federal law makes certain exceptions for a dentist’s participation in a referral program. However, because the online advertising campaign involves the dentist paying for the volume of patients generated, rather than paying a flat fee to a referral service, this type of advertising may not be subject to the exception.

Ethical Rules

In addition to state laws, dentists are often subject to ethical rules determined by regulations of state agencies. For instance, the Georgia Board of Dentistry amended its former rules in November, 2010, adding a provision that “[a] dentist shall not give rebates or split fees with a referral source.”

Additional ethical rules are promulgated by American Dental Association; all members of the ADA volunteer to abide by the ADA Principles of Ethics and Code of Professional Conduct as a condition of membership. Section 4.E of the ADA Principles of Ethics and Code of Professional Conduct provides that dentists may not “accept or tender ‘rebates’ or ‘split fees.’” In the same ways that dentists may run afoul of state laws by offering discounts, referral gifts, and fee splitting, they may also run afoul of ethical guidelines. Similarly, states such as Illinois, Texas, Arizona and New Jersey also prohibit the use of referral gifts.

Insurance Contracts

Dentists offering discounts, referral gifts, or rebates may also incur legal problems pursuant to the terms of their contracts with third party payors. Contracts with insurance companies often require that fees submitted to the insurer reflect any rebates or reductions in fees charged to patients. Therefore, if a discount is given to a patient after the service has been billed to the insurer, the dentist may be held in breach of the contract with the insurer. As such, the dentist may be required to reduce the cost of services billed to the insurer.

Additionally, many insurance contracts include “most favored nation” provisions. These terms require the dentist to provide the insurer with the best price that the dentist charges for a particular service. Dentists who offer a discount to certain patients, even if only a small group over the course of a short time, may be required to reduce the cost of services billed to an insurer thereafter. In fact, the dentist may be forced to refund money previously paid by the insurer for similar services that were initially billed to the insurer at the dentist’s regular price.

Ramifications

If dentists participate in the actions described above, they may be exposed to significant legal risk. Dentists found to be in violation of state laws may be subject to fines, suspension, and even license revocation. Dentists found to be in violation of federal law may be charged with a felony and subject to fines, imprisonment, and exclusion from federal healthcare programs.

Additionally, if the dentist makes an improper payment to a Medicare or state healthcare patient, he or she may be in violation of the federal Civil Monetary Penalties Law, which could subject the dentist to liability for additional monetary penalties. Dentists found to be in violation of ethical rules may also be subject to additional penalties as decided by Dental Boards and/or the ADA. Finally, dentists who are sued and found to be in breach of their contracts with insurers may be subject to civil damages awards, potentially including punitive damages.

Conclusion

Because online coupon advertising is a new and growing trend, its effect on dentists under state and federal law has not fully been broadly determined. As the penalties imposed upon dentists who are found to be in violation of the law or ethics codes may be severe, the most prudent approach for dentists may be to wait for some time to see how the law develops before engaging in this type of advertising campaign. Additionally, dentists may seek guidance from state agencies regarding expected determinations under local law.

Before a dentist enters into an advertising campaign [or social media campaign], they should seek legal advice as to the application of state and federal laws, most favored nation clauses, ADA Ethical rules, and Dental Board rules. While the marketing of any dental practice is important, an ill-advices marketing campaign could result in a dentist being censured, reprimanded, fined, suspended, or losing his or her license.

Stuart J. Oberman, Esq. handles a wide range of legal issues for the dental profession including practice sales, real estate transactions, lease agreements, non-compete agreements and professional corporations. For questions or comments regarding this article please call (770) 554-1400 or visit www.gadentalattorney.com

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What Qualifies as Extra Label Drug Use

Q: How do I know what qualifies as ELDU?

A: Specific criteria must be followed:

  • A valid VCPR is a prerequisite for all ELDU;
  • Only a veterinarian can determine that ELDU is needed and can administer, prescribe or dispense a medication extralabelly. The veterinarian must direct or supervise ELDU in an animal;
  • ELDU rules only apply to FDA-approved animal and human drugs;
  • ELDU is intended for prevention, treatment, and control purposes only when an animal’s health is threatened. ELDU of drugs for production use and/or in feed is not approved;
  • ELDU is not permitted if it results in an illegal food residue, or any residue which may present a risk to public health;
  • A veterinarian must not pursue use of certain FDA-prohibited drugs in food-producing animals.

ELDU of an FDA approved drug may be used if:

  • There is no approved animal drug that is labeled for such use, or that contains the same active ingredient in the required dosage form and concentration.
  • Alternatively, an approved animal drug for that species and condition exists, but a veterinarian finds, within the context of a VCPR, that the approved drug is clinically ineffective for its labeled use.

There are few restrictions on extralabel use in non-food-producing animals compared to food-producing animals. If the intended use is in a non-food-producing animal, then an approved human drug may be considered for extralabel use even when an approved animal drug for that species and condition exists. Economic reasons for ELDU of a human drug over the approved drug for that species are valid to treat the medical condition. Veterinarians should recognize, however, that human-labeled drugs are approved based on studies in people and their use in animals could vary. In addition, minor differences in the formulation may produce alterations in the pharmacokinetics and biological availability in the animal species compared to humans. Also keep in mind that consistent use of human-labeled drugs when approved animal-labeled drugs are available could create relative disincentives for the animal health industry to pursue new animal drug approvals and could further limit the availability of veterinary drugs.

The following additional conditions must be met for ELDU in food-producing animals:

  • Such use must be accomplished in accordance with an appropriate medical rationale; and
  • If scientific information on the human food safety aspect of the use of the drug in food producing animals is not available, the veterinarian must take appropriate measures to assure that the animal and its food products will not enter the human food supply.

If the veterinarian determines the food-producing animal needs a drug administered in an extralabel fashion, an approved animal drug must be considered for the particular use before a drug labeled for humans is considered. The prescribed or dispensed extralabel drug (prescription legend or over-the-counter) must bear labeling information which is adequate to assure the safe and proper use of the product.

Labor Law Update for Dentists

As of April 30, 2012, most private sector employers will be required to post a notice advising employees of their rights under the National Labor Relations Act. This requirement applies to a variety of entities with a gross annual volume of at least $250,000.00. The poster is available for free at https://www.nlrb.gov/poster or by calling (202) 273-0064.

In addition to the NLRA poster, the U.S. government requires the posting of these workplace posters: 1) Employee Polygraph Protection, 2) Equal Employment Opportunity, 3) Fair Labor Standards Act, 4) Job Safety and Health Protection, 5) Rights Under the Family and Medical Leave Act (for employers of 50 or more individuals), and 6) Uniformed Services Employment and Reemployment Rights Act. You can obtain them for free from the U.S. Department of Labor Web site www.dol.gov/compliance/topics/oster.htm.

Should you choose a friend to be your business partner?

Planning to start a business partnership with a friend? Prudence demands looking at the pitfalls – as well as the potential strengths – of such relationships. Here are a few questions to consider.

What will my friend contribute to the business? Does he or she have strengths that will clearly enhance the business – abilities, knowledge, or resources that you don’t possess or aren’t willing to acquire by other means? Say, for example, you are good with customer relations, but not too good with numbers. If your friend loves details and is clever with records, the partnership may make sense. If, on the other hand, your friend really can not offer something that would round out the business or make it more profitable, you might want to consider partnering with someone else.

Are you willing to lose the friendship? This is a tough question, but one that’s critical to consider. After all, you and your friend will be working together, day in and day out, to make the business succeed. Such relationships can bring out the best – and worst – in people. If maintaining your friendship is one of your highest priorities, partnering with someone else may be a better choice.

What’s expected from each partner? Developing a profitable business is hard and often unrewarding work. You and any potential business partner should honestly discuss expected work hours, contributions, and responsibilities. Resentment can creep into any business relationship when partners feel that workloads and rewards aren’t fairly distributed.

Can you communicate effectively? Like a good marriage, a long-term business partnership takes honest communication to succeed. Ask yourself, for example, whether you can handle constructive criticism from your friend/business partner. Even the closest business partners don’t always see eye to eye, so it’s important to take an honest look at how you both handle disagreements. Will you work through difficulties for the firm’s sake, or bury your head in the sand and hope for the best? Answering this question is crucial to the success of your partnership.

Social Media and the Dental Practice

The online world is growing. Facebook now boasts a “population” larger than the United States. Thousands of dentists are currently taking advantage of all types of social media. It is important to take a brief look at some important issues and areas of concern for dental professionals using or considering the use of social media to build and promote their public, patient, and employee relationships.

Public Relations

The advantages of a strong social media presence are clear. Information may be shared with colleagues to sustain camaraderie, with patients to strengthen dentist-patient relationships, and with the public to bolster your reputation. It is vitally important to consult with your legal advisers early and often when bringing your professional presence to an online forum.

Patient Relations

If content on your social media page is also medical in nature, depending on the forum, the Health Information Portability and Accounting Act (HIPAA) may be implicated.

Members of the dental profession should adhere to the following guidelines:

(a) Dentists should be cognizant of standards of patient privacy and confidentiality that must be maintained in all environments, including online.

(b) When using the Internet for social networking, dentists should use privacy settings to safeguard personal information and content to the extent possible.

(c) If dentists interact with patients on the Internet, dentists must maintain appropriate boundaries of the patient-dentist relationship.

(d)  To maintain appropriate professional boundaries dentists should consider separating personal and professional content online.

(e)  Dentists must recognize that actions online and content posted may negatively affect their reputations among patients and colleagues, and may have consequences for their professional careers (particularly for dentists-in-training and dental students), and can undermine public trust in the dental profession.

When dental professionals provide a social media forum for patient feedback, they risk running afoul of HIPAA rules and regulations. Prior to building a social media presence, it is important to develop policies and procedures designed to guide appropriate use of the relevant forum.  A few key points follow:

Under the Health Information Technology for Economic and Clinic Health Act (HITECH Act), there are substantial penalties and fines that may be assessed for HIPAA violations that occur during social media exchanges. Under the HITECH Act, fines range from $100.00 to $100,000.00.

Be clear with a disclaimer that patient information is personal and should never be shared via the Internet. Inform participants that any posting that appears to be a violation of this policy will be removed.

Employee Relations

It is important to keep your employees from becoming lax about privacy rules when it comes to social media.

Education is always the first line of defense when it comes to privacy and security safeguards. Make sure all employees are trained and up to date about the privacy and security rules and be sure to disseminate a written company policy outlining permissible and impermissible actions. Make social media training a part of your HIPAA compliance program.

Social media is a powerful tool for expanding a dental practice, but be aware of the potential complications. Always consult your legal adviser before branching out into online forums.

7 Types of Records Your Veterinary Practice Should Be Keeping

What records should your veterinary practice keep, and how long should you keep them? There are several categories of records that are important to a practice, some for internal purposes and some for tax returns and other government requirements. Let’s take a look at these by category.

 

  1. Tax records. First, consider the records you need to substantiate your annual income tax return. The IRS says that you must maintain adequate records, to support the items of income and expenses that you claim. That means you must be able to produce receipts, invoices, cancelled checks, or banking records supporting expense items. Similarly, you should keep sales slips, invoices, or bank records to support income items.
  2. Accounting records. Most practices have adequate accounting systems to capture routine transactions, but not for nonroutine transactions such as the purchase of depreciable assets. When you buy a car, computer, or piece of office equipment, be sure to file all purchase documents, assign an inventory number, and immediately set up a depreciation schedule.
  3. Travel and entertainment expenses. Good recordkeeping for travel and entertainment expenses is essential. Although the rules can be complex, in general you should capture where, when, who, how much, and the business purpose for each expense. A well-designed standard expense report form can help insure that your records contain all the required information.
  4. IRS audits. Generally, the IRS can audit a tax return for three years after the date it was due or the date the tax was paid, whichever is later. However, if there is a major understatement of income, they can audit for six years after the due date (or seven years after the tax year). For that reason, you should keep most income tax records for seven years.
  5. The IRS requires records relating to employment taxes to be kept for at least four years after the date of the return or the date the tax was paid, although here again a seven-year rule is safer.
  6. Corporate records. Every incorporated  practice (or Limited Liability Company) needs good corporate records, including documents associated with forming the company, bylaws, business licenses, and minutes of all board meetings. Shareholder records should include stock registers and records of all share issuances and redemptions. Also keep copies of all contracts and leases. Finally, don’t forget current and terminated employee files, and records of employee pension or profit sharing plans. Most corporate and employee pension plan records should be kept indefinitely.
  7. Computer recordkeeping. The IRS has established a series of rules and recommendations concerning how electronic records must be maintained. Generally, such records should contain the same information as paper records and should be kept for the same length of time.

Now is a good time to start planning for the rest of 2012.

Protecting the Value of Your Practice:
 Non-Compete and Trade Secret Agreements

Practice owners are often concerned about how to best protect their patient base when an associate leaves the practice. There are two methods of preventing this type of devastation to a practice, which are: (1) non-compete agreements and (2) trade secret agreements.  Both of these types of agreements should be incorporated into an associate’s employment agreement.
Non-Compete Agreements
A non-compete agreement allows the owner of a practice to limit a former associate from starting his or her own practice as well as prohibit an associate from working for a competitor.  The owner of a practice should always consult with their attorney before entering into any type of non-compete agreement.
Trade Secrets
A trade secrets provision in an associate’s employment contract will also help protect confidential information of a practice.  A trade secrets provision should provide that all patients and their confidential information are trade secrets of the practice, and sanctions will be enforced against any associate or employee who attempts to use this confidential information for their own personal gain.
The owners of a practice must be familiar with non-compete and trade secrets agreements.  All associates should be required to sign a non-compete and a trade secrets agreement at the beginning of their employment.
Without a proper non-compete and trade secrets agreement, either prepared separately or incorporated into an associate’s contract, the owner of a practice has substantial financial risk.

Five Potential Legal Risks Associated with Groupon

With the explosion of social media and online marketing, members of the dental community “must” be aware of the risks associated with the new marketing. While dental practices have successfully utilized the services of Groupon to attract new patients, there are growing concerns regarding this type of marketing. The American Dental Association has recently published its opinion on the Groupon issue. Before a dentist participates in a Groupon marketing campaign, they must be aware of potential ramifications.

1: Fee-Splitting
A dentist utilizing Groupon to offer discounts to new and current patients will split a portion of the revenue generated from the promotion with Groupon. Many states have regulations that prohibit fee splitting between a dentist and a third party. A violation of the state regulations could result in the dentist facing censure and reprimand, fines, suspension, and even license revocation.

2: Federal Anti-Kickback Statute
The federal anti-kickback statute, 42 U.S.C. § 1320a-7b(b) generally prohibits a dentist from offering or paying remuneration to induce a person to refer a patient that may be eligible for services under a federal health care program, including Medicare or Medicaid. A dentist violating federal law could be charged with a felony and subject to fines, imprisonment, and exclusion from federal health care programs.

3: Most Favored Nations Clause
The terms of a dentist’s contract with third party payors [insurance carriers] may pose problems with the offer and award of Groupon’s discounts to patients. Many insurance contracts provide that the dentist must provide the insurer with the best price that the dentist charges for a particular service (a “most favored nations” clause). Providing a discounted rate to Groupon customers may breach the most favored nation provision in an insurance contract. As a result, the dentist may be required to offer the same discount to the insurer’s patients.

4: ADA Ethical Rules
According to the American Dental Association Principles of Ethics and Code of Professional Conduct Section 4.E. Rebates and Split Fees, dentists “shall not accept or tender ‘rebates’ or ‘split fees’”.

5: Dental Boards
Most dental boards provide that a dentist “shall not give rebates or split fees with a referral source”.

Before a dentist enters in to or starts any type of marketing campaign (or social media campaign), they should seek legal advice as to the application of state and federal laws, the most favored nations clause, ADA Ethical rules and Dental Board rules. While the marketing of any dental practice is important, an ill-advised marketing campaign could result in a dentist being censured, reprimanded, fined, suspended, and lose their license.

Oral Cancer: Risk Management Considerations

Due to the increasing public concern regarding oral cancer, it is important for dentists to be aware of proper patient assessment and documentation procedures so that they may provide timely and proper treatment to their patients.

The U.S. Department of Health and Human Services states that oral pharyngeal cancers affect around 30,000 people per year in the United States, with around 8,000 of those cases resulting in death. A good deal of malpractice claims against dentists in the United States involve oral cancer cases.

For every dental practice, correct patient assessment is the first step in minimizing any risk to future legal entanglements. When assessing a patient and planning a treatment strategy, dentists should first carefully review the patient’s medical history to note any predisposing oral cancer factors. Next, a comprehensive oral evaluation should be completed.

This full examination should be followed with a review of oral radiographic images in order to note any potential abnormalities in the bones and dentition of the patient.

Properly documenting the patient assessment is just as important as accurately assessing the patient. In order to satisfy the basic standard of care, all dentists are required to perform these evaluations and note all the results from the examination in the patient’s permanent record.

In cancer cases, it is crucial that a treating dentist contact the patient’s oncologist to determine if any special precautions should be taken for the patient before and after undergoing medical treatment, such as chemotherapy. It is also essential that the medical history dictated in the patient’s record include information regarding whether or not the patient has undergone such medical treatment.

Dentists must carefully follow all procedures in the practice in order to help them avoid legal pitfalls. Properly assessing and examining the patient and documenting the patient’s record will not only keep the dentist out of legal trouble, but it will also provide the patient with positive dental care service.

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