Monthly Archives: May 2013

The Do’s and Don’ts of an Orthodontic Practice Transition

When approaching a practice transition, an orthodontist should initially be aware of the fact that such a transaction can be time consuming.  As a practice owner, it is important to understand the basic steps in a transaction.  Orthodontists should take time to interview as many potential buyers as possible and conduct a thorough background check on each potential buyer. 

Practice owners should never let an associate or buyer simply enter the practice based on a handshake.  Instead, it is crucial that the orthodontist seeks the advice of legal and financial professionals who specialize in dental practice transitions. 

Financial professionals can increase the sales price by ensuring that the practice is properly valued, and an attorney experienced in practice transitions is invaluable in ensuring that the practice owner’s interests in the transaction are adequately protected.  Again, the practice owner should understand that the process of a practice transition takes time, and that negotiation will be involved.

In order to have a successful dental practice transition, several steps will be necessary.  First, an appraiser will need to establish a comprehensive valuation of the orthodontic practice.  The orthodontist will need to prepare the practice for transition by using the initial valuation as a tool to make changes that will increase the profitability of the practice. 

Additionally, if the practice owner will be retiring after the transition, he or she will need to seek financial advice on retirement planning.  Next, the practice owner or practice broker will need to locate a new associate or buyer, depending on the nature of the practice transition.  Then, the practice owner will need to get updated valuation information and have an attorney prepare any legal agreements involved in the sale of the practice.  Finally, the practice owner will need to ensure that the buyer or new associate feels welcome and assist them in transitioning successfully into the practice.

Responding to OSHA Requests

Your office assistant just let you know that an investigator from OSHA is on the phone, what do you do? All of a sudden your heart starts to race, you start sweating, and you have less than a split second to decide whether to take the call from the OSHA investigator or call your attorney.  What do you do?

These initial informal phone calls are becoming more and more frequent from OSHA.  First and foremost, you must have a plan in place, if you ever receive such a call.

The United States Occupational Safety and Health Administration (OSHA) separates complaints into two categories: formal and non-formal.  If OSHA receives a formal complaint, it may send an unannounced inspector to observe operations within the dental practice.  When responding to non-formal complaints, OSHA may initially contact a dental office in writing or by telephone.  In order to properly manage the risks associated with an OSHA investigation, practice owners should develop a plan of action for an OSHA investigation.

Letters from OSHA

Typically, when OSHA receives a non-formal complaint, its first investigative step is to send a letter to the owner of a dental practice.  This letter will typically describe the alleged violation and ask the practice owner to investigate the claim and respond to the allegation within a specified time.  When responding to an OSHA letter, practice owners should keep several things in mind.

First, the practice owner should provide a complete and truthful response to OSHA’s request.  The practice owner should never knowingly provide false information to OSHA [which could lead to criminal sanctions].  However, the practice owner should limit his or her response only to the specific alleged violations stated in the letter.  There is danger in providing too much additional, unrelated information to OSHA, which could lead to a larger investigation or to other potential violations.

When responding to OSHA’s request, it may be helpful to provide documents that will show the office’s compliance with workplace safety regulations.  Again, the practice owner should only provide documents that directly relate to OSHA’s current investigation.

In responding to the investigation, a practice owner should be “leery” about making comments regarding specific employees.  Comments that OSHA interprets as “anti-employee” may make a bad impression.  The fact that a dispute with an employee or former employee led to the filing of an OSHA complaint does not necessarily mean that the complaint originated from a current or former employee [although it is a very real possibility].

In some cases, OSHA will share a copy of the practice owner’s response with the complainant and request their comments.  OSHA may perform a follow-up inspection after reviewing all information available from the letters; however, this is rare because follow-up inspections are typically chosen at random.  If the practice owner fails to sufficiently respond to OSHA’s request or does not respond at all, OSHA will perform a follow-up inspection for violations.

Telephone Calls From OSHA

When investigating a non-formal complaint, OSHA may call a dental practice, in addition to sending an investigatory letter.  Responding to OSHA telephone inquiries poses several unique risks for practice owners.

The practice owner will be asked to comment on allegations that he or she has not seen in writing.  The inspector will likely refer to specific OSHA standards, which the practice owner may not have available for reference.  The inspector will ask questions about office conditions that the practice owner has not had an opportunity to investigate.  Moreover, one or both of the parties to the conversation may not understand what the other party means by the questions and answers.

For the above reasons, when responding to telephone OSHA investigations, the practice owner runs the risk of making statements that are not in his or her best interest or that may be interpreted as admissions to violations.  For this reason, some practice owners should be very cautious before commencing with a telephone interview with an OSHA investigator.

Developing an Office Protocol

To avoid the problems, practice owners should create a risk management plan for responding to calls from OSHA inspectors.  Once formulated, the office protocol should be clearly explained to and followed by all office staff.

First, only the practice owner should answer telephone inquiries from an OSHA inspector.  Office staff who may answer the telephone should immediately contact the practice owner if an OSHA inspector calls.  If the practice owner is not in the office, this person should take a message and assure the inspector that the practice owner will follow up with them as soon as possible.  Staff should never respond to the inspector’s questions, because the practice owner may be held responsible for any misstatements by staff members.

Before responding to an OSHA inspector’s inquiries, the practice owner should take the inspector’s name and the name of the office from which they are calling.  The practice owner should then verify that the information provided is accurate by cross-referencing the information with directory assistance.  Occasionally, scams have involved persons falsely identifying themselves as OSHA inspectors.

Once the practice owner has verified the identity of the inspector, he or she should inquire whether the complaint is written or unwritten.  If the complaint is written, the practice owner should request a copy of the complaint to review prior to responding to the investigator’s verbal questions.  This will also provide the practice owner with an opportunity to investigate office conditions before responding to the investigator.

As with a written investigation, the practice owner should confine the conversation to the violations alleged in the complaint.  By discussing items not referred to in the complaint, the practice owner risks expanding the scope of OSHA’s investigation.  If the inspector’s questions begin to go beyond the scope of the complaint, politely but firmly object to answering those questions. 

Practice owners should “never,” “never,” “never” argue with the investigator.  Again, the practice owner should be truthful and should resist the urge to make disparaging comments about the person who may have filed the complaint.  Upon request, the practice owner should send the inspector documentary evidence that is relevant and supports the practice owner’s position on the alleged violations.

The first step to OSHA compliance is having an OSHA manual, which is an absolute must.  It is amazing how many dental offices do not have an OSHA manual, or do not have an up-to-date OSHA manual.  The second critical step to OSHA compliance is proper office training.

By formulating an office protocol to handle OSHA investigations, practice owners can take steps to adequately protect themselves during the investigation process.  It is crucial that practice owners plan for OSHA investigations and ensure that the office staff is aware of the protocol, to avoid unintentionally admitting a violation due to an employee’s statement to an investigator.

Medicaid and Medicare Audits: What to Expect

The Medicaid and Medicare programs are auditing dental practices more often than ever before. Because these audits are increasingly common, dental practice owners should be aware of general guidelines for ensuring that the audit will go as smoothly as possible with the least amount of interruptions to the dental practice.

It is extremely important to keep all documentation organized. Dental practice owners must train their staff on the importance of keeping proper documentation in every patient file and timely filing it away. Practice owners should also become familiar with the Medicaid and Medicare manuals and regulations. Following these simple steps will save dentists a lot of time and money if Medicaid or Medicare ever decides to audit your practice.

Medicaid and Medicare generally audit dental practices that have been flagged because of a certain item claimed or because of the volume of claims that these programs have paid to your practice. For example, a dental practice may be audited because of multiple claims for the same date of service, or because a claim was submitted for a procedure outside of a dentist’s specialty area. In addition, if the dollar amount of claims from your dental office is greater than average for dental offices in your area, Medicaid or Medicare may audit your practice.

If a Medicaid or Medicare audit letter arrives in the mail alerting you that your dental office will be audited, it is crucial that you promptly follow all instructions contained in the letter. All correspondence from Medicaid or Medicare should be taken seriously. You will be asked to make certain patient records available for audit. For audit requests in the mail, you should make every attempt to meet the requested deadlines for the submission of records. If you are unable to produce the records within the time period allotted, contact the auditor and request an extension.

When submitting documents to the Medicaid or Medicare auditors, always submit copies of your records (or keep copies for your files if the original documents are requested). If you send your original documents and do not make copies, you may never get the records back.

For audit inspections conducted in person, the auditors will request that you make certain records available for inspection. Upon the auditors’ arrival at your dental practice, the records may be scanned and reviewed onsite or may be taken from your office to be reviewed at an offsite location. Typically, the auditors will conduct an entrance interview to explain the auditing process and which records they will be reviewing. If the audit is being conducted in your dental practice, it is possible that the audit will last several weeks and it is a good idea to find the auditors a space to work in your dental office that will not interfere with your daily business.

If the audit is conducted onsite, it is very important that you and your staff avoid engaging in unnecessary conversations with the auditors. You should always answer all questions directly and truthfully, but participating in lengthy discussions may have an adverse effect on your audit, as what you discuss may be used against you in the final report. Remember that although the auditors may be friendly, they are in your dental practice because they believe there may be a problem and their job is to uncover a violation of your agreements with Medicaid or Medicare.

Once the audit is complete, an exit conference may be held so that the auditors may explain the results of their audit. This is a good chance to clarify any questions that you have and to obtain an indication of what may be in the final report.

After the Medicaid or Medicare audit is complete, you will receive a letter and written report that details the results of the audit. This letter may arrive several months after the auditors leave your office. Any alleged errors that the auditors found will be identified in the report. If the auditors found claims for services that they did not believe were properly documented or billed, the report will include the amount of improper claims billed to Medicaid or Medicare. Your rights to appeal will also be explained in the letter.  

If the letter provides a timeframe within which to respond for reconsideration, it would be prudent to respond with an explanation for the claims that the auditors found. If the request for reconsideration is not successful, you may appeal the findings.

It is very important that dental practice owners address the problems found in the auditor’s report so that the Medicaid and Medicare programs are aware that their findings are taken seriously and the same issues will not arise if your dental practice is audited again. If billing or documentation issues were identified, procedures must be changed so that these issued are addressed and resolved immediately.

If Medicaid or Medicare finds that improper claims were billed by your dental practice, there may be one or more actions taken against you. Medicaid may suspend payments to your dental practice or suspend your participation in the Medicaid or Medicare programs completely. In addition, your dental practice may be referred to the Attorney General Medicaid Fraud Control Unit.  

It is crucial that dentists familiarize themselves with the Medicaid and Medicare manuals.   Dental practice owners that adequately train their staff on Medicaid and Medicare procedures and regulations and keep all documentation organized will save a lot of time and money if their dental practice is audited.

Employment Law: Employee Breaks

Many dentists have inquired into the legal requirements of providing their employees with lunch or rest breaks. Neither the Fair Labor Standards Act nor Georgia law requires that employers provide any form of lunch or rest periods to employees. However, it does place obligations on those employers who choose to do so. It is important to ensure that dental employers who provide lunch or break periods to employees are in compliance with state and federal law.

If an employer offers short breaks [five (5) to twenty (20) minutes] to its employees, the Fair Labor Standards Act considers the break as compensable work hours. These breaks of short duration should be included in the sum of hours worked during the work week and must be considered in determining whether the employee worked overtime. According to the federal law, as long as the employer has clearly communicated the length of the break to the employee and that any extension of the break is against company policy, unauthorized extensions of these work breaks do not need to be counted towards hours worked.

Employers are not legally required to compensate employees for meal periods of thirty (30) minutes or more, provided that the employees are free to use their meal period as they wish and are not required to perform work during this time. These bone fide meal periods serve a different purpose than short work breaks and are therefore not considered work time and are not compensable. However, if an employee works during a lunch break that is intended to be unpaid, the dental employer may be obligated to pay additional wages to that employee, including unintended overtime. To prevent employees from working during unpaid meal or lunch periods, a dental employer should implement policies requiring employees to eat away from their workspace.   This will ensure that the dental employer will not be liable for paying employees during that time.

Cyber Breaches in Dental Practices – The New Frontier

Cyber security in a dental practice is becoming more and more complicated.  In fact, most practices have little or no cyber security measures. Recently, the database of a dental practice in Palo Alto, California was hacked into, and the hacker demanded a ransom in the amount of $3,000.00.

Hackers like to target small dental practices because they know that a small dental practice owner typically does not have the resources for more sophisticated (and more expensive) security defenses.

How can a dentist secure patient data in a digital world?

  1. Set up and enforce a strict computer and Internet use policy that restricts employees from reading and downloading personal email while using an office computer.
  2. Hire an experienced IT company to set up a strict firewall on your office network. If your dental practice uses wireless, have the IT company hide your wireless network from public view.
  3. Train your staff on how viruses infect computers with common user habits such as forwarding personal email messages and downloading computer wallpapers.
  4. Keep all anti-virus and anti-malware software updated along with computer operating systems.
  5. Always create strong passwords of more than 8 characters that use mixed-case letters and include numbers and symbols.
  6. Keep business and home computing separate. Don’t use a laptop at home for fun and then bring it into the office for use on the dental office network. Business computers should strictly be used for business.

With the proliferation of cyber breaches in dental practices, data security is no longer an option.

HIPAA Privacy and Security Update Final Rule

On January 17, 2013, the Department of Health and Human Services released the Health Information Technology for Economic and Clinical Health (HITECH) Act modifications to the Health Insurance Portability and Accountability Act (HIPAA) privacy and security regulations.  The HITECH Act will go into effect on March 26, 2013, and the compliance deadline for HIPAA-covered entities is September 23, 2013.  Dentists must be aware of these modifications, as they will have great implications for the handling of patient health records.

The new rule, which is 563 pages long, is meant to strengthen the privacy and security of patient health information as health records are becoming digitalized.  Under HITECH, business associates of HIPAA-covered entities are now directly liable for compliance with HIPAA and there are now more limitations on the use and disclosure of protected health information for marketing purposes.  In addition, privacy protections for genetic information have been increased so that most health plans may not use this information for underwriting insurance policies.

The HITECH Act allows patients the ability to restrict insurance companies from accessing portions of their medical records if they paid for the specific treatment out of their own pocket.  The rule also provides patients new rights to access their health records and prohibits the sale of protected health information without individual authorization.  Dentists and staff members must become familiar with the new modifications, as they will be required to comply by September 23, 2013.       

Personal Protective Equipment

More and more dental practitioners are receiving letters and phone calls from OSHA regarding compliance with OSHA’s standards for personal protective equipment.  All dental practitioners should ensure that their dental practice is in compliance and all employees are trained to follow OSHA’s guidelines so that any OSHA investigation will be easily defended.

The United States Occupational Safety and Health Administration (OSHA) mandates that dental health care workers wear personal protective equipment such as gloves, masks, eyewear, and protective clothing in certain situations in order to reduce the risk of exposure to bloodborne pathogens.  Personal protective equipment is meant to protect a dental health care worker’s skin and eyes, nose and mouth from exposure to a patient’s potentially infectious material. 

Dental health care personnel should always wear protective eyewear or a face shield during any procedure or patient care that is likely to generate sprays of blood or bodily fluid.  The protective eyewear prevents the mucous membranes of the eyes from contact with microorganisms and from splatter generated during dental procedures.  In addition, it is important that dental employees clean the protective eye equipment regularly with soap and water and disinfect the eyewear after each patient visit. 

Surgical masks that cover a dental health care worker’s nose and mouth should also be used during any dental procedure that is likely to generate any splatter of blood or other bodily fluid.  The surgical mask should be disposed of after each patient visit.  In addition, when splatter and spray of bodily fluids are anticipated, dental health care personnel should utilize gowns or jackets to protect their skin and clothing.  For the safety of the health care personnel, the gown or jacket should be changed daily and should never be worn outside of the dental office. 

OSHA also requires that dental health care providers wear gloves when touching a patient’s blood, saliva, or other potentially infectious materials to prevent contamination of the provider’s hands and to reduce the likelihood that contaminated materials on the provider’s hand will be transferred to the patient during treatment.  However, it is very important that dental practice employees are aware that wearing gloves does not eliminate the need for handwashing.  Because gloves may have defects or may be torn during use, it is imperative that dental health care providers thoroughly wash their hands before and after utilizing gloves for dental treatment.  OSHA advises against washing the actual gloves before use, as this can cause micropunctures which may allow bodily fluids to penetrate through the punctures in the gloves. 

In addition, OSHA regulates the type of glove that should be utilized by a dental health care provider for specific dental treatments.  For example, gloves made out of natural rubber latex, nitrile, polyethylene and polyvinyl chloride should be used for patient examinations and other nonsurgical procedures.  These gloves are a medical device regulated by the FDA.  Gloves made out of natural rubber latex, nitrile, and combinations of latex or synthetics may be used for surgical procedures.  These gloves are also a medical device regulated by the FDA and are sterile and single-use disposable.  They must be used for one patient only and discarded immediately after use.  Finally, gloves made out of neoprene, nitrile or butyl rubber are non-medical gloves and may be used for cleaning, disinfecting and handling contaminated materials or chemicals.  These gloves are not regulated by the FDA and are not for use during patient care. 

Unfortunately, OSHA investigations are becoming more and more common in dental offices.  Dental practice owners must ensure that their practice is in compliance with OSHA’s standards for personal protective equipment before a complaint is filed with OSHA and a costly investigation is launched.

Pregnancy and Employment in the Veterinary Practice

Due to the vast number of female employees in the veterinary field, the issue of employee pregnancy arises frequently.  Many veterinarians fail to abide by federal law in their dealings with pregnant employees because they simply aren’t familiar with the legislation protecting the pregnant employee: the Family and Medical Leave Act (FMLA) and the Pregnancy Discrimination Act (PDA).  However, the lack of knowledge surrounding these laws can be costly and can lead veterinary employers straight into disputes with labor boards. 

The Family and Medical Leave Act was added to Title VII of the Civil Rights Act of 1964 on October 31, 1978 and applies to employers with fifty (50) or more employees.  Covered employers must provide up to 12 weeks of unpaid leave to eligible employees for the following reasons: birth and care of the employee’s newborn child; care for a child after adoption or foster care placement; care for the employee’s spouse, child or parent with a serious health condition; or for a serious health condition that affects the employee’s ability to work.  This federal law also addresses hiring, maternity leave, health insurance and fringe benefits for pregnant employees. 

The Family and Medical Leave Act provides that women affected by pregnancy, childbirth or related medical conditions shall be treated the same for all employment-related purposes, including receipt of benefits, as other persons not so affected but similar in their ability or inability to work.   Employers are prohibited from refusing to hire someone who is pregnant because of her condition.  The Act also mandates that employers allow pregnant women to continue their work as long as they are able to perform their job-related tasks. 

In addition, employers must hold the pregnant employer’s job open during their maternity leave for the same amount of time that jobs are held open for employees on disability leave.  The federal law also provides that health insurance provided by an employer must cover expenses for pregnancy-related conditions. 

Finally, the same benefits that are provided to workers on disability leave should be given to employees on maternity leave. This includes temporary disability benefits, accrual and crediting of seniority, pay increases and vacation calculation.  

The Pregnancy Discrimination Act (PDA), which applies to employers with fifteen (15) or more employees, also prohibits discrimination against pregnant women.  This Act guarantees that pregnant women are provided with the same opportunities and benefits as non pregnant employees who are similarly limited in their ability to perform their job responsibilities.  However, if a pregnant employee is unable to fulfill their job responsibilities, employers are not required to provide accommodations. 

Furthermore, most states have enacted their own pregnancy discrimination laws.  Many states have also lowered the covered employer threshold to those employers with fewer than fifteen (15) employees.  For example, Iowa law mandates that employers with four (4) or more employees grant pregnant employees leave for the period that the employee is disabled because of pregnancy.  California law also requires employers with five (5) or more employees to grant pregnancy leave.  

When federal or state pregnancy laws apply to your veterinary office, it is important to be aware of and to adhere to certain guidelines.  First, if the pregnant employee refuses or is unable to perform certain tasks, such as lifting heavy equipment or taking patients’ x-rays, then the veterinary employer must determine what accommodations may be needed.  For instance, a veterinary employer may shorten the employee’s work week or eliminate certain tasks such as lifting, taking x-rays, or working around hazardous materials. 

However, if the accommodation would cause an undue hardship and require significant difficulty or expense for the employer (taking into consideration the number of employees at the veterinary office, the effect of the accommodation on expenses, the financial resources of the veterinary office, and the impact the accommodation would have on the entire veterinary practice), then the employer may deny any accommodation.   If the employee is unable to perform job related tasks and the veterinary employer is unable to provide accommodations, then the employer must determine whether the tasks are essential to her job and if so, whether another employee may take over those tasks.  If another employee is unable to perform those job related tasks, then it may be prudent to provide an unpaid maternity leave. 

In addition, when federal or state laws apply to a veterinary practice, the veterinarian must remember that it is illegal to deny employment, promotions, or to fire a woman because she is pregnant.  Employers should also be aware that pregnancy leave is generally without pay.  However, the employee may use any paid vacation or sick time accrued as part of her pregnancy leave.   Typically, pregnancy leave is four to six weeks, but it may be extended up to twelve weeks if the pregnancy involves complications.  Finally, employees returning from a pregnancy leave are entitled to return to their former or a similar position at the same work schedule and pay, unless there is a legitimate business reason as to why that job is no longer available. 

If federal or state pregnancy laws do not apply to your office but you wish to provide pregnancy leave either to retain a good employee or to be competitive with other veterinary offices, you must establish a leave policy and ensure that it is administered in a way that is consistent and nondiscriminatory. 

To be safe, whether or not federal or state laws apply to your veterinary office, all veterinary employers should take certain actions upon discovering that an employee is pregnant.  The employer should sit down with the pregnant employee and inquire into the employee’s plans for returning to work after delivery.  It would be prudent to ask the employee about her estimated delivery date and whether she will have any health restrictions that will limit her ability to adequately perform her job functions.  In addition, the employee should sign a release that states that the employee has been informed of the risks that her job poses to her health and that she accepts all responsibility for protecting herself and her child from exposure to all risks associated with her job. 

Women are a protected class, and if an employee’s pregnancy is handled inappropriately, the employer could end up in court, incurring costly fees and time away from the practice.  Therefore, it is extremely important that veterinary employers familiarize themselves with the laws that apply to their practice.