Record Keeping for the Veterinary Practice

All veterinary practices must comply with record-keeping requirements related to the practice of veterinary medicine. In order to do so, veterinarians must be up-to-date on the various record-keeping laws imposed upon them.

American Veterinary Medical Association (AVMA) Rules

The AVMA’s Principles of Veterinary Medical Ethics requires veterinarians to keep medical records if a veterinary-patient relationship (VCPR) exists. The AVMA recommends that veterinarians maintain patient records for a minimum of two (2) years. In Georgia, a veterinarian is required to keep patient records for at least three (3) years.

Information that is required to be kept includes the name, address, and telephone number of the veterinarian and patient, and identification of the animal treated. A veterinarian is also required to keep very good records of any drugs that may be used or prescribed for treatment.

Federal Record-Keeping Laws

There are specific Drug Enforcement Administration record-keeping requirements for controlled substances. Veterinarians, when distributing a controlled substance, must keep a record of the substance name, dosage form, quantity and number of commercial containers distributed or received, date, name, address, and DEA registration number of distributing practitioner and receiving practitioner.

These records must be maintained separately and be readily accessible for a minimum of two (2) years. A veterinarian may be subject to civil or criminal sanctions for failure to maintain and produce these records.

Georgia State Board of Veterinary Medicine Requirements                     

700-12-.04 Record Keeping – Complete, accurate, and legible records must be maintained on all animals. This information must include, but is not limited to, animal owner information, animal identification, and veterinary care. Under the Board’s rules, when a veterinarian dispenses a drug, a written record must be kept. The veterinarian must produce for a patient a copy of these records, if requested. 

700-8.01 Unprofessional Conduct – A veterinarian is required to prepare and maintain a record of the care and treatment of all animals treated in the practice. These records should contain clinical information sufficient to justify the diagnosis given and to warrant the treatment given to the animal.

These records must be kept in a readily retrievable form, and recorded contemporaneously, following treatment of the animal. Copies must be made available to the animal’s owner upon their written request. A reasonable fee may be charged for the search, retrieval, duplication and mailing of the records. Failure to keep records constitutes unprofessional conduct.

Sanctions by the Georgia Board for failure to provide records

If The State Board of Veterinary Medicine office receives a complaint against a veterinarian for failure to release records, the Board will send a letter to the veterinarian to release the records to the patient within 10 days of the Veterinarian’s receipt of the Board’s letter. The veterinarian must submit proof that the records have been mailed to the patient.

If the Board does not receive proof that the records have been mailed or a response from the veterinarian within 15 days from the date the request was mailed from the Board, the veterinarian may have his or her license sanctioned by the Board with a public reprimand, which becomes a permanent part of the veterinarian’s record and possibly pay a fine of $500.00.

Record-Keeping Checklist

– Make records contemporaneous with observations and treatment

– Note client decisions to not follow recommendations

– Treatments and diagnostics offered, and reasons for each

– Phone conversations regarding treatment

– Entries made in periods of absence or vacation

– Informed consent in writing to procedures, with a witness

– Instructions about drugs for food-producing animals with withdrawal periods

Conclusion

In order to minimize legal risk associated with practicing veterinary medicine, veterinarians should keep required documentation in proper order. Keeping well-kept records will reduce the risk of errors or omissions in records, miscommunication with patients, noncompliance, and any possible claim of negligence or malpractice on the part of the veterinarian. Well-kept records can be accomplished with a reliable entry system and a well-trained veterinary staff.

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

Veterinarians are often concerned about how to best protect their patient base when an associate veterinarian leaves the practice.  Owners of a veterinary practice want to ensure that an associate can not take the practices’ patient base [or employees] with them when they leave.  To prevent this devastation, each associate should be required to sign an employment agreement, which contains certain restrictive covenants.

Non-Compete Agreements

The owner of a veterinary practice may be familiar with various terms that are used in the protection of important practice assets, such as: non-compete agreement, non-compete clause, covenant not to compete, and restrictive covenant. These are all different terms used to essentially describe a non-compete agreement.  A non-compete provision is typically a paragraph inserted into an employment agreement.   However, a non-compete agreement may be a separate document which may be signed by the employee.  These agreements are usually signed when an employee begins his or her job.  A non-compete agreement allows the owner of a practice to limit a former employee or associate from starting his or her own business that competes with the former employer or from working for a competitor. 

A non-compete agreement must be reasonable in that it protects legitimate interests of the veterinary practice.  The veterinarian’s interest in protecting the time they put into training a new employee must be balanced by the employee’s freedom to work where they choose and the public’s interest in seeing a particular veterinarian.

A non-compete agreement must meet certain requirements before a court will uphold its validity. First, the court will look to the scope of a restriction, or the type of activity that is restricted.  If a veterinary practice only treats small animals, then in some cases, the non-compete may only prohibit the practice of small animal medicine for a specified period of time, leaving the former employee free to practice large animal medicine. 

The second requirement for an enforceable non-compete agreement is that it have a specific time limit.  The shorter the period of time, the more likely it will be enforced.  Typically, an agreement of two years or shorter will be considered valid.  Again, the interests of the parties must be balanced, allowing an employee freedom to continue to work and protecting the public’s interest in selecting a veterinarian. 

The third requirement for a valid non-compete agreement is that it contain a reasonable geographic limit.  When determining the geographic restraint, the employer should consider the number of clients that come from a five mile radius, ten mile radius, twenty mile radius, or other geographical area.  If a former employee moves to a veterinary practice within a ten mile radius of their previous employer, for example, and a non-compete agreement was in place prohibiting competition within a ten mile radius, the court would likely uphold the agreement as valid and issue an injunction against the former employee.  However, if the former practice purports to restrict the employee from practicing anywhere within a fifty mile radius, this non-compete would likely not be enforceable, as it is not reasonable. 

Should a court find that a requirement for a non-compete agreement is not met, the court may utilize the “blue pencil rule”.  This rule allows a judge to modify a contract that may be too burdensome on one party, and then enforce the remainder of the contract to make the agreement more reasonable. 

Non-compete agreements may be used not only when an employer/employee relationship exists, but also when a veterinarian practice is sold. If a veterinarian purchases a veterinary practice, the purchase price typically includes the “goodwill” and client patient base, of the practice.  However, without a prudent non-compete agreement, the selling veterinarian may open another veterinary practice across the street, which would be detrimental to the purchaser of a practice.  A non-compete agreement would prevent the seller from competing with the buyer in a specified geographic area for a limited period of time, which would allow the purchaser to establish his or her new practice.  

Additionally, when hiring a new employee, the owner of the practice should always ensure that the new employee is not subject to a non-compete agreement with his or her previous employer.  In some cases, a new employer may be held liable for hiring an employee who violates a non-compete agreement with a former employer. 

In order to maintain the financial stability of the practice, the owner of a veterinary practice should have an associate veterinarian sign an employee agreement which contains a non-compete and non-solicitation clause. In addition, all associates should be required to sign an employment agreement when they start their employment.  Without an employment agreement in place, the owner of a veterinary practice is exposed to unwanted risk and potential financial instability.  

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 social media (e.g. Facebook, Twitter, Youtube, LinkedIn, &c.) and smartphones. 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. However, what may seem to be a cheap promotional tool can quickly become a costly defamatory weapon.  Having a strong social media presence is better than social media absence. However, as with any tool, it is best to educate yourself about the tool’s capabilities and drawbacks before its use. It is vitally important to consult with your legal advisers early and often when bringing your professional presence to an online forum.

Patient Relations

It is becoming more common that social media and smartphone user data is tagged with an increasing amount of detail, including the author, date, time, and even location of all uploaded Information. If the content of the information 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, and must refrain from posting identifiable patient information online.

(b) When using the Internet for social networking, dentists should use privacy settings to safeguard personal information and content. Dentists should routinely monitor their own Internet presence to ensure that the personal and professional information on their own sites and content posted about them by others, is accurate and appropriate.

(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) When dentists see content posted by colleagues that appear unprofessional they have a responsibility to bring that content to the attention of the individual, so that he or she can remove it and/or take other appropriate actions.

(f) Dentists must recognize that actions online and content posted may negatively affect their reputations, 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:

(1) Clearly define what permissions are voluntarily given or granted to the site administrator when a patient posts in the forum and explain how the posted information will be used (prior written consent is always best); (2) Specify what degree of privacy can be expected in the forum (most Internet forums are publicly available and publicly accessible); (3) Make it abundantly clear that any social media forum is not to be used for personal medical advice; (4) State that the social media forum is not monitored continuously or on a twenty-four hours a day, seven days a week basis; and (5) Post consistent policies in a prominent location on all social media sites, tailored to the relevant forum.

Above all, 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. Do not edit posts. If the content of a post is questionable, it should be deleted. Do not become the co-author of a potential HIPAA violation. Always take medical conversations offline.

Employee Relations

It is equally 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.

Potential Legal Risks Associated wtih 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. 

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.

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. 

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.

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’”. 

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.  This article will provide some insight into potential claims and also provide risk management advice to help avoid these problems.

Oral Cancer Statistics

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.  Most cases which result in death occur in people over 40 years of age and those with a history of smoking, regular alcohol use, or both.  Men are more likely than women to develop oral cancer.  A good deal of malpractice claims against dentists in the United States involve oral cancer cases. The complaints range from failure to diagnose to improper post-treatment dental care. 

Correct Patient Assessment

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 includes careful intraoral and extraoral examinations, including all parts of the tongue, floor of the mouth, the hard and soft palates, and palpitation of the nodes.

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.  The dentist should be sure to carefully and clearly document each area examined in the patient’s permanent record.  All abnormalities should be noted along with notation of all normal areas, as well. 

If an abnormality or suspicious lesion is found during the examination, the dentist should either properly refer the patient to a specialist for further examination and diagnosis or schedule the patient for a re-evaluation.  Failure to do one of these two procedures in a timely manner can result in more severe medical or dental consequences for the patient. 

Proper Documentation

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. 

The dentist should further understand the need to take special precautions throughout treatment for certain medical conditions, including oral cancer.  This includes before, during, and after treatment of the patient.  When dealing with oral malignancies, these precautions may relate to the surgery, chemotherapy, or radiation therapy which a patient might be undergoing. 

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.  This record should also note any necessary precautions that should be taken in regard to the patient’s dental care.  Failure to take into account the patient’s medical condition and the necessary precautions because of the patient’s medical condition when providing treatment can result in complications involving both the dental and the medical care of the patient.  This, in turn, could provide a basis for a malpractice claim against the dentist.

Conclusion

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.  In the case of oral cancer, following the proper procedures may allow a dentist to observe the abnormality in a timely manner, thus creating a better prognosis for the patient.

Dental Practice Audits

Dental audits were rare at one time.  Now, however, with insurance companies and third party payers auditing more routinely, it is much more likely that a dental practice will fall victim to an audit.  Most dental practices that are contracted with dental plans are audited at least once during the course of their practice.  Many of these dentists are left wondering why audits are becoming a more routine exercise of third party payers.  The answer: alarming statistics.  The Federal Bureau of Investigation estimates that ten percent (10%) of the money expended on health care is due to fraudulent activity.  Insurance companies estimate that fraudulent health care billing represents up to $10 billion each year. 

In addition, Medicare fraud is becoming more rampant.  The United States General Accounting Office estimated that out of every $7 spent on Medicare, $1 is lost to Medicare fraud.  Fraud is adding enormous costs to the nation’s health care system.  As more and more fraudulent health care charges rack up for insurance companies to pay, insurance companies are becoming serious about auditing health care practices.  With a thorough understanding of the audit process, dentists will be better prepared for what appears to be the inevitable. 

After receiving notice of an impending audit, dentists often wonder why their practice has been targeted.  Generally the audits conducted by dental plans and third party payers are a method of showing state regulators that the patients are receiving quality care.  A third party payer is an organization other than the patient (which would be the first party) or health care provider (also known as the second party) involved in the financing of health care services. The audits are typically meant to check the status of a dental plan and are not meant to be a check on the specific dental practice.  The selection process third parties undertake to audit a given dental practice varies.  Third parties may randomly pick dental practices on the basis of how likely the practice is to have discrepancies once audited.  The third party’s goal is to recoup lost dollars, and so this strategy is chosen to allow a third party to obtain the largest return. 

A dental practice is most likely to be audited after submitting atypical claims online.  Each claim submitted is analyzed by a third party payer.  The auditors flag abnormal or atypical charges, as these may suggest provider abuse.  Additionally, third parties track information on practice charges by analyzing the average cost per claim, average cost per person, and how often certain treatments are performed.  With this information, the third parties target specific dental practices for an audit. 

Auditors typically share common goals.  By conducting audits, third party payers are attempting to prevent abuse of the payment system.  By performing audits on practices, dentists are forced to understand the importance of keeping records and submitting only honest and accurate claims.  Also, dentists are more likely to keep accurate records and submit truthful claims when they know an audit may be lurking than if they assume their dental practice will never fall victim to an audit.  A second goal ties in with the first, and that is to help dentists understand and follow the third party payer’s guidelines.  Finally, the auditors are trying to find instances of overpayments to dental practitioners for claims the dental practice has submitted. 

Many dentists want to know what to expect if their practice gets hit with an audit.  First, the dentist will most likely be notified of the impending audit by a letter, however the third party payer may make initial contact with the dental practice by telephone.  When a telephone call takes place, a day and time for the audit will be arranged, and the dentist should ascertain what type of audit will be conducted.  It is also advisable to ask why the audit is being performed.  The answer may be that it was simply a random selection, but a dental practitioner should make certain that it was not because of a claim submission that the third party payer flagged as abnormal.     

When auditing the dental practice, the insurance plan will most likely send representatives to the dental practice to ensure that billing claims match documentation in patient files.  Auditors will analyze whether amounts paid to the practice were for an actual member of their insurance plan, whether the services rendered were actually provided according to treatment plans, and whether the services provided by the dentists were in accord with federal law. 

Additionally, auditors may analyze patient files.  Auditors may be interested in reviewing patient medical histories, dental histories, documentation of oral examinations, treatment notes, diagnosis, procedures completed, the outcome of each procedure, and follow-up care. It is also possible that documentation supporting submitted claims will be requested during an audit.  Problems encountered during audits are most likely to be caused by improper documentation of records rather than by fraudulent billings.  The dentist is typically without recourse if the records in the patient file do not match up with the claims billed. 

Various state laws and the HIPAA (Health Insurance Portability and Accountability Act) Privacy Rule permit third party payers to access and review the health records of their own members.  However, third party payers are no longer permitted to access the records of patients who are not enrolled in their plans like they were in the past.  Therefore, third party payers are no longer able to compare their enrollees’ records and charges with those of patients not enrolled under their plans.

Aside from auditing the patient files, the third party payer may also access the quality of the facility, the maintenance of the equipment, the level of difficulty patients on their plan encounter in obtaining appointment times, and the level of compliance with federal regulations during the course of the audit.  It is prudent that the dentist remains with the auditor at all times.  It is worth the time to clear the calendar on the day of the audit and to stay with the auditor as patient and billing records are reviewed.  Also, the staff of the dental practice should be prepared for the audit, and the dentist should discuss the procedures to be followed prior to the day it is conducted.

Since dental audits are becoming a routine part of doing business, dentists must protect their practice by preparing their office for an audit.  To prevent audit problems, dentists should make themselves aware of terms of any third party contracts, keep the plan manuals in a safe place so the dentist can refer back to them, ensure each procedure performed matches the procedure billed, and ensure that all patient records are organized and contain all relevant information on each patient.  Also, when claims are filed online, ensure that the correct price is sent to the third party insurer.  With a more thorough understanding of third party audits and the third party payer’s motivation for conducting them, dentists will be more likely to avoid costly mistakes.

The Importance of Privacy

Privacy is something we all value. Especially with new discoveries in the link between good oral hygiene and overall medical health, it should not come as a surprise to anyone that dentistry patients want to ensure more than ever that their personal information will not be shared with anyone without a legitimate need to know.  Under the US Department of Health and Human Services (HHS.gov), HIPAA Rules were created to ensure that all healthcare professionals respect and protect a patient’s privacy.   How well does your office comply with HIPAA guidelines?

About HIPAA

The Health Insurance Portability and Accountability Act (HIPAA) became law in 1996.  HIPAA provides federal protections for personal health information held by patients. The HIPAA privacy rule does permit the disclosure of personal health information needed for patient care and other important purposes related to a patient’s care.  The Security Rule under HIPAA specifies a series of administrative, physical, and technical safeguards or security measures required for covered entities (dental offices that transmit patient information in electronic form) to assure the confidentiality, integrity, and availability of electronic protected health information. 

The Privacy Rule establishes a federal requirement that dentists and other medical practitioners obtain patient consent before using or disclosing a patient’s personal health information for treatment, payment, or healthcare operations. 

Private health information, also known as PHI, is any information relating to a patient’s health, treatment, or payment for healthcare that identifies a patient.  Private health information includes, but is not limited to: names, addresses, phone numbers, fax numbers, e-mail addresses, credit card information, certificate numbers, license numbers, account numbers and birth dates. Many dental employees, including dental assistants, dental hygienists, lab technicians and front office staff, may come into contact with PHI.  PHI should be carefully secured and traced throughout the dental office. 

Although compliance ismandatory only for “covered entities”, the American Dental Association suggests that dentists who are not covered entities adopt the same privacy practices. It is still possible that the HIPAA privacy laws may establish an industry standard among dental practices and failure to comply with the industry standard may result in liability.

How is PHI stored in our office?  Who is authorized to access the information?  How is the information stored and how is it secured?  How and when is this information destroyed?  Where in the office is it appropriate to discuss personal health information?   Do we have an adequate and recorded procedure for training?

Answers to these questions cannot be left to interpretation; healthcare providers must adopt privacy procedures for their offices, ensuring that patient records are kept in a secure space and that employees are trained on privacy policies, making records inaccessible to those who do not have a legitimate need to view them. Most of the information gathered on patients requires these security measures.  Thus, the entire dental office must be aware and held responsible to avoid costly violations. 

HIPAA Violations

Failure to comply with HIPAA can result in both civil and criminal penalties.  These penalties vary based on the nature of the violation and the extent of the resulting harm.  Healthcare entities and individuals who obtain or disclose individually identifiable health information face a penalty ranging from $100 to $50,000 per violation, as well as imprisonment up to one year.  However, offenses committed with intent to use the information for personal gain, harm, or commercial advantage face a more serious fine of $250,000 and imprisonment for up to ten years.  Also, if a state has privacy laws more stringent than the federal regulations, the state laws will supersede HIPAA.

It is important to note that not only are employers held liable – employees who knowingly violate a HIPAA rule may be subject to a criminal penalty as well.

Dental Advertising

Dentists have a right to promote their practices through various forms of advertising. However, ethical guidelines regarding advertising must followed. Section 5 of the American Dental Association’s Principles of Ethics and Code of Professional Conduct sets forth certain standards in part by stating that no dentist shall advertise or solicit patients in any form of communication in a manner that is false or misleading in any “material” respect.

This standard has been implemented in order to protect the general public from false and misleading advertising that may induce a patient to seek dental services from a particular office. Although some states may not have adopted Section 5 of the ADA’s Principles of Ethics and Code of Professional Conduct, Section 5 sets forth a good guideline that all dentists should follow. The fundamental issue in dental advertising is whether the advertisement is false or misleading in any material aspect.

The first step to ensuring compliance with ethical advertising is to understand advertising regulations, standards and the law. With a proper understanding, dentists will be able to market their practices and also avoid legal problems associated with perceived false or misleading advertising. Some dentist practices have already began to implement these legal strategies, Columbia Dental has been known to be one of the first to follow the new published regulations.

Rules that govern the marketing of businesses [including dental practices] are generally enacted by the Federal Trade Commission. There are various forms of marketing, such as advertising in magazines, newspapers, billboards, Vinyl Banners, on the internet, radio, or even television. The Federal Trade Commission is constantly monitoring advertisements, which includes dental advertising.

Dental advertisements must be truthful and non-deceptive. For an advertisement to be completely truthful, it must have evidence to back up each assertion of fact. An advertisement is non-deceptive if it is not likely to mislead a reasonable consumer and does not omit any necessary information for the consumer to make an informed decision regarding whether to obtain services at a specified dental practice. Regardless of the claim, all material information must be disclosed in a manner that a reasonable consumer could understand. Disclosures, if typed, should be in a size large enough for a consumer to clearly read, and failure to comply with this requirement may result in the disclosure being deemed inadequate. Furthermore, an asterisk or other symbol should be used to call attention to the disclosure, especially if the disclosure is placed at the bottom of the advertisement.

In order to determine if an advertisement may be of a concern to the Federal Trade Commission, the advertisement must be considered in its entirety. Even if all of the statements in the advertisement are true, but the pictures are deceptive, then the advertisement may violate the Federal Trade Commission’s advertising standards [and the advertisement may also violate the guidelines set forth by a particular state dental board or state law]. Also, the advertisement should not imply something other than what the advertisement is intending to communicate.

Advertisements that incorporate statistics must be accurate. If a dental advertisement is using statistics, then there must be accurate data to back up the advertising assertion. The Federal Trade Commission requires dental claims regarding consumer health to be supported by reliable scientific evidence and medical data. This evidence may include research, studies, tests, and analysis, which are conducted by dental experts and professionals in an objective manner

Obviously, non-factual, silly claims or jokes contained in a dental advertisement which no reasonable person could possibly regard as harmful will not be considered false and misleading.

The Federal Trade Commission has extensively regulated claims such as price reductions. Dentists should be aware of the relevant standards for this type of advertising. First, if a former price is specified in an advertisement, the price must be the actual price of the goods or services offered for a reasonably substantial amount of time, and on a regular basis. If a former price is not specified, and a sale price is announced, the sale price must be such that a reasonable person with knowledge of the former price would regard the goods or services as a legitimate savings.

Next, if a specific dental advertisement compares the prices of one dental practice to another [yes, this actually does occur], then the competitor’s prices that are listed in the advertisement “must” be the actual prices charged by the competing dental practice. Falsely stating the price of services for a competing dental practice in an advertisement is considered misleading and deception advertising.

Obviously, truthful advertising is important to both the American Dental Association and to Federal Trade Commission. All states have laws that prohibit false, deceptive or misleading dental advertising. If a dentist violates certain rules and regulations regarding the prohibition of false and deceptive advertising, then the violation could result in a fine, injunction, censure, suspension or revocation of a dentists license. Clearly, dentists who advertise must comply with the Federal Trade Commission, and each dentist must also comply with their own state law [and dental board requirements ]regarding advertising.

With the explosion of the internet, many state dental boards are taking an “active” role in monitoring dental advertising on the internet. A growing area of concern regarding advertising on the internet is that dentists are claiming they are specialists in areas that are not considered or recognized as specialty areas. For example, if a particular state dental board does not recognize cosmetic dentistry as an area of specialty, and a dentist advertises on the internet that they are a “specialist” in the area of “cosmetic dentistry”, then that particular state dental board may consider the advertisement as false and misleading, which could result in disciplinary sanctions against that particular dental.

Also, “buffing” ones credentials on the interest [or any other form of advertisement] may be considered a violation of certain advertising rules as set forth by a particular state dental board. If a dentist claims that they are a “nationally recognized expert in implant dentistry”, the advertisement may be concerned deceptive advertising.

The rule of thumb for dental advertising is that a dentist must be fully aware of their own state regulations regarding advertising, and every dentist should review the guidelines as set forth by the American Dental Association, even if a particular state has not adopted the ADA’s guidelines.

Simple Estate Planning for Dentists

Statistically, seventy percent (70%) of all dentists will die without a Will, and that number could be higher for dentists who fail to implement tax saving strategies during their lifetime. A failure to plan could directly affect the amount of estate taxes your estate may be required to pay to the IRS, and the amount of taxes you may be required to personally pay on a yearly basis. In some cases, estate taxes may be substantial.

Outlined below is essential estate planning and tax information you need to know today, so you can plan for tomorrow.

  1. Make a Will. You should state precisely who will receive your property at the time of your death [i.e. spouse, children, etc.]. If you have minor children you should appoint a guardian for your children. By preparing a Will, you not only plan for the distribution of your property, but you also plan for your children’s future.
  2. Consider a trust. There are two kinds of trusts, an Irrevocable Trust and a Living Trust. An Irrevocable Trust may be used for a variety of reasons, such as to avoid potential estate taxes, as well as asset protection. If you need to Buy a million dollar life insurance policy, one of the easiest ways to avoid estate taxes on your life insurance proceeds is to establish an Irrevocable Life Insurance Trust [ILET]. A properly prepared life insurance trust may protect your life insurance proceeds from estate taxes. A living trust is used to control your property while you are living, and also to avoid probate.
  3. Make health care directives. By creating a healthcare directive, you will be able to set forth in writing your healthcare wishes and intentions. Unless you outline in writing your healthcare wishes and intentions [life support, coma, vegetative state], someone other than a loved one may be forced to make life and death decisions for you and get multiple quotes of different insurance companies.
  4. Make financial power of attorney. A general power of attorney will allow you to appoint a trusted person to handle your finances if you are unable to do so yourself. If you become incapacitated or disabled, who has the authority to handle the day to day operations of your dental practice?
  5. Protect your children’s property. If you have minor children, you should appoint a trustee in your Will [or Trust] to handle the disposition of your children’s property in the event of your death. If you fail to plan, your children may receive a substantial amount of property [land, dental practice, etc.] when they turn 18 years old. How long would $500,000.00 last in the hands of an 18 or 20 year old? Your Will [or Trust] should state what age(s) you wish your children to receive their property (21, 25, 30, etc.)
  6. File beneficiary forms. If you have a bank account or investment account, you may be able to designate a beneficiary for those accounts. Many bank and investment accounts are “pay on death accounts”, which will allow the funds in such accounts to be paid directly to your designated beneficiary. In most cases, “pay on death accounts” are excluded from the probate process.
  7. Consider life insurance. If you have substantial assets (home, investments, dental practice), you must have life insurance. However, in order to avoid estate taxes (which may be as high as 51% of your estate), you should consider establishing an Irrevocable Life Insurance Trust. If you are considering purchasing life insurance you’re going to be wanting to look into what the best policy could be for you.
  8. Understand estate taxes. If you have accumulated any type of assets whatsoever [house, bank account, investments, life insurance and especially a dental practice], you must take the necessary steps in order to reduce your estate taxes. You have worked hard all of your life, and if you fail to plan, your family may lose everything.
  9. Protect your business. If you are the sole owner of a dental practice or have a partner, you must have a business succession plan. A succession plan should specifically outline what happens to your dental practice or your ownership interest in the dental practice at the time of your death. If you have a partner, you must have a Shareholder’s Agreement.
  10. Store your documents. In order to ensure a smooth estate planning transition, the following records should be easily accessible: Will, Trusts, Insurance policies, Real estate deeds, Certificates for stocks, bonds, annuities, Information on bank accounts, mutual funds, and safe deposit boxes, Information on retirement plans, 401(k) accounts, or IRAs, Information on debts: credit cards, mortgages and loans, utilities, and unpaid taxes.

As the owner of a dental practice, you constantly deal with the day to day pressure [accounts receivable, employee problems, marketing, patients, etc.]. In the rough and tumble world of dental practice management, don’t forget to manage your own estate.

Hiring and Retention of Employees

One of the fastest areas of liability exposure for the dental profession is the negligent hiring and retention of employees.

If an owner of a dental practice fails to conduct a due diligence investigation of a potential employee prior to hiring that particular employee, better understanding of how to manage small business can help to mitigate this eventuality but if not, then the owner of the practice may be held liable for the negligent or intentional acts of that particular employee.

Prior to hiring an employee, the owner of a dental practice should conduct a due diligence investigation, which should include the following:

1. Performing a criminal background check;

2. Reviewing the driving history of a potential employee;

In general, negligent hiring is based upon the principle that an owner of a dental practice has an obligation to protect not only the employees, but also the patients. It would be a good idea to use services similar to ClearStar to carry out these employment checks.

If the owner of a dental practice fails to conduct a criminal background check on a new or existing employee, and that particular employee commits some type of criminal act against a patient [i.e., improper touching, credit card fraud, etc.], then the owner of the practice may be held liable.

A growing area of potential liability for the owner of a dental practice is the negligent retention of an employee.

If the owner of the practice discovers that an employee has committed a negligent or criminal act while employed at the practice, and the owner of the practice fails to take appropriate disciplinary action against that particular employee, the owner of the practice may be liable if the employee commits a subsequent act.

[Example: The retention of an employee after it is discovered that the employee improperly charged a patients credit card for personal use, or an employee had prior misconduct with a patient].

In today’s society, security is a big concern, especially in the area of domestic violence. The owner of a dental practice may have a certain legal obligation to protect his/her office staff and patients from potential danger.

If an employee is being harassed at work, either by a spouse, significant other, friend, etc., then the owner of the practice should make sure the harassment does not interfere with office operations, or place employees or patients at risk. For example, if a very heated verbal altercation occurs during office hours between an office employee and his or her spouse as a result of a pending divorce, the owner of the practice should immediately address any potential security concerns.

With a little due diligence and the implementation of proper office procedures, the owner of a dental practice should be able to avoid a great deal of liability exposure.

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