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 or use the services of an outsourced accounting company to ensure the processes are done correctly and legally, 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 ensure 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. If you are based in Canada, and you think you have under or over declared on your tax return, consider contacting Canadian Tax Amnesty Lawyers support to help you through the process.
  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. This information doesn’t have to be held in paper form. You can put this on the cloud and pull the data whenever you want it. If this is something you’d be interested in, you could look into this comparison between Xero and Quickbooks to get yourself started.
  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.

9 Areas of a Practical Employee Office Manual

In the last few weeks, we have received more and more questions as to what additional provisions should be included in an Employee Manual, over and above the “standard” provisions. As a result, outlined below are nine provisions which should be included in every Employee Manual.

1 Employee Recruitment: This provision should include where to advertise for employees, how to write job advertisements, how to prepare effective job descriptions, proper interview techniques, as well as sample interview questions.

2 Office Policies: This provision should focus on establishing office policies and procedures in order to introduce new staff to your practice, as well as provide ground-rules and practice philosophy.

3 Employment Policies: With this provision, you should establish guidelines for personal appearance, sexual harassment, and substance abuse. In addition, an employee manual should also outline the use of cell phones and social media within the practice and outside of the practice.

4 Employee Training: Your office manual should establish employee training techniques from OSHA and HIPAA, where mandatory.

5 Employee Benefits: Every employee manual should address vacation, sick time, other leave policies, health insurance coverage, and retirement plans.

6 Employee Management: This provision should set forth employee management guidelines in order to promote positive office morale, an employee appreciation day and incentive programs, bonuses, performance-based raises, and performance evaluations.

7 Employee Termination:Employee termination could be for a number of reasons from breaching the code of conduct, to failing a drug test given by employers (using a drug kit from somewhere like https://www.countrywidetesting.com/collections/10-panel-drug-tests). This provision should focus on the delicate but important issue of employee termination procedures. Failure to address employee termination in the proper manner could open a practice owner up to certain violations of state and federal law.

8 Employee Management: This provision should set forth guidelines for employees to promote positive relations with special needs, pediatric, geriatric, and difficult patients through confident communication skills.

9 Workplace Safety and Security: Your office manual should examine safety and security in the workplace, including complying with OSHA standards, as well as handling emergencies and natural disasters.

These nine categories form the foundation of any great employee manual. By evaluating your Employee Manual and implementing a few additional provisions, a practice owner may avoid a wide range of employment law problems.

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