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Thursday Troubleshooter: Is your dental practice legal in these 2 areas?

Aug. 25, 2016
Just like any other businesses, legal issues affect dental practices. Here are two items recently brought to the attention of Thursday Troubleshooter. How does your practice measure up?

Do you have a tough issue in your dental office that you would like addressed? Each week the experts on Team Troubleshooter will tackle those issues and provide you with answers. Send questions to [email protected].

QUESTION: Is a stamp signature as good as a wet signature? We have a form in which the dentist authorizes the services to be done by the hygienists (prophy/x-rays) when he's not in the office. We're allowed to practice under general supervision. But if someone cancels their appointment and the front desk wants to call another patient to fill in the open appointment space and write a form authorizing a prophy and x-rays, is it legal for the person to use the stamp with the dentist’s signature on it?

ANSWER FROM WILLIAM PRESCOTT, JD, Wickens, Herzer, Panza, Cook & Batista:
The provision of hygiene services where the dentist is not present is a state-by-state issue. While I do not know the specific state you are in, if a form utilized is patient specific and another patient fills an open appointment due to a cancellation, it follows that a stamped signature is inappropriate and an actual signature is required.

Because administrative regulations are state specific, I suggest that the state’s dental board be contacted. In Ohio, for example, a dentist signs a form that indicates that the hygienist has specific training and skills in order to allow the hygienist to provide services when the dentist is not present under limited circumstances.

QUESTION: Can you please give an example of a dental office that is considered a "covered entity" as compared with a dental office that is NOT considered a "covered entity"?

ANSWER FROM LINDA HARVEY, RDH, MS, LHRM, Compliance/Risk Management Specialist:
First let’s look at the definition of a covered entity and what that entails. Under 45 CFR §160.103, a covered entity means:
1) A health plan
2) A health-care clearinghouse
3) A health-care provider who transmits any health information in electronic form in connection with a transaction covered by this subchapter

So what is a covered transaction? It’s the electronic exchange of information between two parties in order to carry out financial or administrative activities related to health care. It includes the following types of information transmissions:
1) Health-care claims or equivalent encounter information
2) Health-care payment and remittance advice
3) Coordination of benefits
4) Health-care claim status
5) Enrollment and disenrollment in a health plan
6) Eligibility for a health plan
7) Health plan premium payments
8) Referral certification and authorization
9) First report of injury
10) Health claims attachments
11) Health-care electronic funds transfers (EFT) and remittance advice
12) Other transactions that the Secretary may prescribe by regulation

Is the average dentist a covered entity? If your office uses the internet to conduct any of the above transactions, including but not limited to insurance verification and coordination of benefits or filing claims electronically, then you qualify as a covered entity.

If you are entirely paper-based (paper patient records, submit paper claims via US mail, etc.) and don’t perform these transactions, you will still be held accountable for provisions of the Privacy Rule as seen by previous complaints against dentists. In addition, the Privacy Rule covers a health-care provider whether it electronically transmits these transactions directly or uses a billing service or other third party to do so on its behalf.

One early example of a privacy complaint filed against a dentist involved marking the front of patient charts with confidential health history information. (See story below.) A more recent example involved an Indiana dentist who gave 63 boxes of patient records to a company to dispose of. The company left the records in a church dumpster. As a result, the dentist was fined 12K by the Indiana Attorney General. As a side note, the HITECH Act gave State Attorneys General the authority to bring civil actions on behalf of state residents for violations of the HIPAA Privacy and Security Rules.

Even if a dentist does not meet the definition of a covered entity, consider these two points. First are state privacy laws that might be more stringent, such as in Texas, California, and Florida. Second is whether or not the practice maintains any patient information in electronic formats, such as a practice management software system. If the answer is “yes,” then it’s wise to consider following the Security Rule standards in order to avoid potential data breaches along with state or federal penalties.

(Story) An OCR (Office of Civil Rights) investigation confirmed allegations that a dental practice flagged some of its medical records with a red sticker with the word "AIDS" on the outside cover, and that records were handled so that other patients and staff without need to know could read the sticker. When notified of the complaint filed with OCR, the dental practice immediately removed the red AIDS sticker from the complainant's file. To resolve this matter, OCR also required the practice to revise its policies and operating procedures and to move medical alert stickers to the inside cover of the records. Further, the covered entity's privacy officer and other representatives met with the patient and apologized, and followed the meeting with a written apology.

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Send your questions for the experts to answer. Responses will come from various consultants, many of whom are associated with Speaking Consulting Network, Academy of Dental Management Consultants, Dental Consultant Connection, and other expert dental support and human resources organizations. Their members take turns fielding your questions on DentistryIQ, because they are very familiar with addressing the tough issues. Hey, it's their job.

Send your questions to [email protected]. All inquiries will be answered anonymously every Thursday here on DIQ.

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