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All staff members should sign or initial their entries. In addition, all entries by staff members should be reviewed by the dentist, who should in turn verify the accuracy of the entries, make any necessary changes or additions, and co-sign the entry. This is particularly important for those dentists who delegate the task of writing clinical progress notes to their assistants. The data recorded by staff members under the dentist’s direction ultimately remains the dentist’s responsibility. If an entry is illegible, incomplete or incorrect, the patient may suffer consequences, and the dentist will be held liable.
In today’s legal environment, a owner of a dental practice may be vicariously liable for the errors and omissions of staff members. As a general rule, the risks are clinical in nature, however, a substantial amount of errors or omissions occur as a result of miscommunication. In matters of alleged patient miscommunication, a patient alleges that they were told the wrong clinical information, or were never told the correct clinical information at all.
Although, claims arising from a dentist’s vicarious liability for the clinical error or omission of a staff member may not be very common, dental malpractice claims arise from a patient’s dissatisfaction with staff member interaction. A dental practice owner can manage the risks of staff members by hiring qualified individuals, who can project the desired image of the practice, are well trained, and communicate in a clear manner.
The IRS will review many factors in order to determine whether a worker is an independent contractor or an employee. Some of the factors include (1) behavioral control; (2) financial control; and (3) the relationship of parties.
In each case, it is very important to consider all of the factors regarding an employment relationship.
The factors listed above will show whether there is a right to direct or control how a worker performs their required work. A worker that may be considered an employee when a dental practice has the right to direct and control the worker. The practice does not have to actually direct or control the way the work is performed, as long as the employer has the right to direct and control the work.
If a worker receives less extensive instructions about what should be done, but not how it should be done, they may be considered an independent contractor. For instance, instructions about time and place may be less important than directions on how the work should be performed.
Training – if the practice provides a worker with training about required procedures and methods, this indicates that the practice wants the work to be performed a certain way, and this suggests that a worker may be considered an employee.
The factors below show whether there is a right to direct or control the business side of the practice.
Significant Investment – if a worker has a significant investment in their work, they may be an independent contractor. While there is no precise dollar test, the investment must have substance. However, a significant investment is not necessary to be considered an independent contractor.
Expenses – if a worker is not reimbursed for some or all of their business expenses, then they may be considered an independent contractor. Especially, if their unreimbursed business expenses are high.
Opportunity for Profit or Loss – if a worker can realize a profit or incur a loss, this suggests that they may be in business for themselves, and that they may be considered an independent contractor.
Relationship of the Parties
The facts below illustrate how the practice and a worker may perceive their relationship.
Employee Benefits – if a worker receives benefits, such as insurance, pension, or paid leave, this is an indication that they may be an employee. If a worker does not receive benefits, however, they may be either an employee or an independent contractor.
Written Contracts – a written contract may show the actual intention of the worker and practice. This may be very significant if it is difficult, if not impossible, to determine the status of a particular worker based on other facts.
Dental offices are now being hit with Ransomware (cyber blackmail). If you own or work in a dental practice, you need to know what Ransomware is, and the ramifications of this serious security breach.
Ransomware Trojans are a type of cyberware that is designed to extort money from a dental office. Often, Ransomware will demand a “ransom” payment in order to release the hijacked dental office software.
The hijacking of dental office software can include:
- Encrypting data and software that is used by a dental practice (Eagle Soft or Dentrix) – so that the dental office can no longer have access any type of patient information
- Blocking normal access to the entire dental office software
How Ransomware Enters Dental Office Computers
The most common ways in which Ransomware is installed are:
- Via phishing emails, or
- As a result of visiting a website that contains a malicious program
After the Ransomware has infiltrated a particular computer or network, they leave a ransom message on the computer screen that demands the payment of BitCon Currency in order to decrypt the files or restore the system to its normal function. In most cases, the ransom message will appear when the user restarts their computer after the entire infiltration has taken place.
In order to keep on top of the latest cyber security breaches, we have taken the intuitive to consult with cyber security forensic experts, in order to assist our dental clients, both before the breach occurs [for preventive measures] and after a breach occurs [to determine the extent of the damages].
If a dental office is infected with Ransomware, a practice could suffer a massive security breach, and be subject to huge HIPAA fines [$100.00 to $50,000.00 per violation, as well as $250,000.00 in criminal fines].
Every employee needs to understand his or her obligation in order to protect patient data. Employees also need clear expectations about behavior when it comes to their interaction with sensitive patient data. For that to happen, every practice should have a data security policy. The policy should outline policies and procedures that help safeguard employee, patient and third-party data, and other sensitive information.
The essential elements that form the foundation of a good privacy plan include:
Safeguard data privacy:
Establish password management:
Govern internet usage:
Manage email usage:
Govern and manage practice-owned mobile devices:
Establish an approval process for employee-owned mobile devices:
Govern social media:
Oversee software copyright and licensing:
Report security incidents:
The provision of healthcare is changing at a rapid pace as healthcare providers endeavor to maintain maximum efficiency while navigating the technology rich climate. As a result of the reliance on electronic data, dental offices have become vulnerable to cyber security threats. The growing volume and sophistication of cyber-attacks suggest that dental practices will have to grow increasingly vigilant to ward off these threats. A breach of cyber security will inevitably lead to significant expenses, both financial and reputational, which can wreak havoc on a dental practice.
Many dentists believe that cyber criminals are not a threat to their small dental offices. However, when choosing between a large corporation or bank with security teams and firewalls preventing access to databases and a dental office with no firewall or security team, the dental practice will be the chosen target. In fact, many hackers specifically target small dental offices because they believe that the small business may not have the resources for sophisticated security devices and do not enforce employee security policies.
Dental practices are an increasing target for cyber criminals. These offices hold a vast amount of data, including names, health history, addresses, birthdates, social security numbers, and even banking information of hundreds, if not thousands, of patients. The threat of this information being stolen by a staff member or a cyber-criminal is great, and dental practice owners must address this concern before a theft creates a legal nightmare for the dental practice.
Healthcare organizations make up roughly 33% of all data security breaches across all industries and the healthcare industry is the most breached industry in the United States. According to the US Department of Health and Human Services, almost 21,000,000 health records have been compromised since September 2009. It has been shown that human error causes the majority of personal health information data breaches, and that actions of healthcare employees cause 3 times as many breaches as external attacks.
The most common causes of data breaches in healthcare organizations are theft, hacking, unauthorized access or disclosure, lost records and devices, and improper disposal of records. A significant proportion of healthcare breaches are a result of lost or stolen mobile devices, tablets and laptops. In addition, security breaches are not solely inflicted upon the large HMOs, as more than half of all organizations that suffer from security breaches have fewer than 1,000 employees.
The Health Insurance Portability and Accountability Act requires healthcare providers to maintain the privacy of patient health information and to take security measures to protect this information from abuse by staff members, hackers, and thieves. The penalties imposed upon health care providers for HIPAA violations are great. The monetary penalties can range from a fine of $100 to a fine of $50,000 per violation, with a $1,500,000 maximum annual penalty. In addition to the federal penalties, dentists may face penalties imposed at the state level as well as lawsuits filed by disgruntled patients whose health information has been compromised.
It is crucial for dentists to take steps to ensure that their practice is in compliance with HIPAA provisions regarding computer security. Because the majority of data security breaches occur when staff members fail to follow office procedures or exercise poor judgment, the location of computers in the dental office is key. All computers should be placed in areas where the computer screens are not visible to patients and visitors, and encrypted passwords should protect access to each computer. Passwords should contain mixed-case letters and include numbers or symbols and should be changed regularly. In addition, passwords should not be written down under keyboards or kept on desks or surfaces where the public may be able to access them. Dentists should ensure that all staff members understand the importance of maintaining the privacy of patient health information.
Every dental practice should have a policy that includes steps for safeguarding patient information and educate staff members as to how to comply with the office policy. A strict Internet and computer use policy should be enforced that prohibits staff members from checking personal e-mail accounts or visiting Internet sites that aren’t work-related. It is also important that dentists ensure that all firewalls, operating systems, hardware and software devices are up to date, strong and secure and that wireless networks are shielded from public view. Antivirus software should be installed on every computer, kept updated, and checked regularly.
When accessing office data remotely, dentists should use only trusted Wi-Fi hot spots and never use shared computers. Smartphones and tablets should be password protected to prevent easy access to patient information in case the device is lost or stolen. In addition, all hard copies of documents with patient information should be shredded. Finally, to ensure that your dental practice is HIPAA compliant, data transmitted to payers, health plans, labs and other healthcare providers may need to be encrypted to ensure that a hacker will not have access to this data.
Because dental practices are subject to heightened government enforcement and the scope of fines and penalties for data breaches have increased, many dental practices have relied on cyber insurance for protection in the event of a breach of cyber security. These insurance policies cover the cost of investigating a theft, compensate the insured for all state and federal fines and penalties imposed, and fund all related lawsuits and legal fees, thus relieving dentists of the financial and time burdens imposed as a result of the breach in security.
It would be prudent for all dentists to invest in data security and in the proper training of staff members as to acceptable use of office computers. If plans and policies are put in place proactively and steps are followed to ensure HIPAA security compliance, a dental practice should be able to prevent the significant cost and headache involved in responding to a cyber-breach.
If a security breach in a dental office does occur, it is imperative that appropriate action is taken immediately, which includes determining how the breach occurred, and the extent of the security breach. In addition, if a security breach does occur, the owner of a dental practice must be very careful whom they initially contact and provide information to. Any improper or accidental disclosure to a third-party other than legal counsel for the dental practice owner may be subject to the rules of discovery if litigation occurs, which could increase the liability exposure of the practice owner.
Stuart J. Oberman, Esq handles a wide range of legal issues for the dental profession including cyber security breaches, employment law, practice sales, OSHA, and HIPAA compliance, real estate transactions, lease agreements, noncompete agreements, dental board complaints, and professional corporations.
For questions or comments regarding this article please call (770) 554-1400 or visit http://www.obermanlaw.com
Oberman Law Firm is proud to be a sponsor of the 2014 AB Cooper Seminar through the North Georgia Dental Society. We look forward to seeing our friends and colleagues at this great event Friday, November 21. If you still need to register visit northgeorgiadentalsociety.org.