Embed Size (px)
Citation preview
3/7/2016
1
Mert N. Aksu, DDS, JD, MHSA Pamela Zarkowski, JD, MPH American College of Legal Medicine February 26, 2016
• The practice of dentistry has become filled with a plethora of rules, regulations and requirements that are increasingly becoming difficult to track. Compliance, with environmental, employment, practice and regulatory rules is adding cost and burden to the average practitioner.
• This overview of some of the obscure and obvious issues. We will look at a snapshot of some of the current rules, regulations and requirements, and a look at what is coming down the road.
• Topics to include: • employment issues • prescribing issues • environmental, hazardous waste and waste water issues. • tracking of medical devices and products used in medical care
• How do we keep up? • How do we prepare the practitioners? • Today we will engage you in a discussion
intended to demonstrate the need to better understand the evolving issues in the dental profession.
No specific Occupational and Safety Administration standards for dentistry.
Bloodborne Pathogens Standard: (29 CFR 1910.1030) This is the most frequently requested and referenced OSHA standard affecting medical and dental offices. Some basic requirements of the OSHA Bloodborne Pathogens standard include: • A written exposure control plan, to be updated annually. • Use of universal precautions. • Consideration, implementation, and use of safer, engineered needles and sharps. • Use of engineering and work practice controls and appropriate personal.
protective equipment (gloves, face and eye protection, gowns). • Hepatitis B vaccine provided to exposed employees at no cost. • Medical follow-up in the event of an “exposure incident”. • Use of labels or color-coding for items such as sharps disposal boxes and
containers for regulated waste, contaminated laundry, and certain specimens. • Employee training. • Proper containment of all regulated waste.
3/7/2016
2
OSHA training should be conducted annually and documented. Documentation of training should be kept for three years. Hepatitis B vaccination should be offered to clinical employees within 10 days of employment. Documentation of immunity to hepatitis B vaccination must be kept on file. If an employee declines the hepatitis B vaccine, the employee signature must be on file. Keep the OSHA manual up to date. If you don’t have a current manual, you can use these models from
the OSHA Web site at www.osha.gov/Publications/osha3186.pdf. Do you have an OSHA poster? If not, download one free from this OSHA Web site at
www.osha.gov/Publications/osha3165.pdf. Do you have a copy of the Bloodborne Pathogen Standard? It should be in your OSHA manual. If not,
you can download it from this OSHA web site at www.osha.gov/pls/oshaweb/owadisp.show_document?p_table=STANDARDS&p_id=10051.
Keep employee record-keeping and health forms on file. Keep record-keeping and health forms for the duration of employment PLUS 30 years. Make sure the eyewash station works properly, has cold water only, and that a sign designates its
location. Keep fire extinguishers mounted on walls and currently charged. Keep emergency exits marked and unobstructed. Make an inspection of the office for safe work conditions such as electrical and trip and fall hazards. Review evacuation plans and protocols. If you don’t have evacuation plans, you can download samples
from OSHA eTools at www.osha.gov/SLTC/etools/evacuation/evaluate.html. A first aid kit should be available for employees to use for minor cuts and injuries.
Hand hygiene policies should be in place. Make sure Exposure Incident Protocol is current and reviewed annually. Provide Personal Protective Equipment (PPE):
• clinical jacket
• protective eyewear
• mask
• gloves (both exam and utility) Personal protective attire should be provided at no charge to employees. Reusable clinical jackets should be laundered and maintained by the employer at no charge to employees. Engineering controls, such as needle recapping devices or safety syringes, should be used. There should be an annual review and evaluation of safer sharps devices. Work Practice Controls should be employed to reduce risks when handling sharps. Hazard Communication Standard must be followed:
• Inventory of hazardous substances
• Organize Material Safety Data Sheets (MSDS) for each hazardous substance
• Place labels on containers not identified (secondary containers)
• Inspect all chemical containers for leaks
• Employees should be trained on proper use of and handling of hazardous substances
• PPE provided for handling chemicals
• Training and information on chemical spill, disposal, and cleanup should be provided Sharps containers should be located as close as possible to where sharps are used. There must be a spill-proof container,
colored red or orange-red, and it must be puncture-resistant and have a biohazard label. An explanation of what labels, signs, and symbols mean (chemical, biohazard, radiation, etc.) must be provided. There should be an ergonomic plan to reduce incidents of musculoskeletal injuries.
• No stipulation for adult dental care. • Practice is eligible for small business health care credits. • All employers covered by the Fair Labor Standards Act, which includes
dental offices with employees, are required to provide each employee with a notice informing them of the new health insurance. marketplace coverage options by Oct. 1.
• ACA does not cut Medicare benefits. • EHR incentive program rewards dentist for using certified EHR software
and products. http://www.dentalproductsreport.com/dental/article/obamacare-5-things-every-dentist-needs-know-
about-affordable-care-act
Ohio’s EPA rules apply to dental offices
• http://www.epa.ohio.gov/portals/41/sb/publications/dentaloffice.pdf
Checklist addresses amalgam, mercury, wastewater, Publicly Owned Treatment systems and obligation to report.
Emphasis: only water from your bathrooms and sinks where only handwashing is done can go to an onsite sewage treatment or disposal system
Dental Effluent Guidelines EPA is proposing
pretreatment standards for discharges of pollutants into publicly owned treatment works (POTWs) from certain existing and new dental practices. Dentists would be required to control discharges of dental amalgam pollutants into POTWs.
Issue of the chronic polluter: Dental practice has been in building for 50
years, upon sale of the building the new owner completes an environmental survey and determines that there is amalgam sludge in the plumbing and discharge lines. What is the liability to the new/old owner?
What is the standard for legal representation for the purchaser?
3/7/2016
3
You recently purchased a practice and during the practice transition you ask the seller to conduct background checks on all employees.
Upon conducting the background check you discover that that the front desk manager has a previous conviction for embezzlement from a dental practice.
What do you do?
Civil liability for overprescribing? YES The case of the pharmacy error. DEA
executes raid on dentist due to pharmacy error.
Impaired provider? DEA and enhanced scrutiny of prescribing patterns – medical necessity. Case of Dr. A small town dentist.
Recordkeeping, patients of record, follow-up care…
3/7/2016
4
Groupon and Living Social • The Legal Division of the California State Department of
Consumer Affairs (DCA) has released a legal opinion concluding that a contractual arrangement between a health care professional and an Internet marketing service offering online discounts for medical services violates state law.
• Online marketing companies, such as Groupon and Living Social, contract with businesses to promote discounted products and services to potential customers. The online company determines the customers to whom the offer is actually promoted. In order to take advantage of the discounted service, the customer must provide advanced payment directly to the online company, which typically deducts a percentage as its contracted fee and remits the balance of the payment to the business.
Summary judgment was granted to plaintiff Catherine Manzione in a multi-million dollar lawsuit.
In January, 2011, Ms. Manzione had an elective cosmetic rhinoplasty performed by Dr. Mashkevich. Prior to the surgery, the patient signed a “Photographic Release and Consent” form. In that form, the patient explicitly withheld her consent to use any before or after photos in an advertisement or web publishing. Specifically, the patient’s signature appeared directly below the statement:
“I do not want my photos to be used. I understand that the photographs will be placed in my confidential records only.”
At this same time, plaintiff also signed an “Authorization and Informed Consent” form which
stated: “I give permission to Dr. Mashkevich or a staff member to take still or motion clinical photographs with the understanding that such remain the property of the doctor. If, in the judgment of the Doctor, medical research, education, or science will benefit from their use, such photographs and related information may be published and republished in professional journals or medical books, or used for such publication or use, including as presentation material.”
In 2013, the patient discovered her before-and-after photos were posted on the doctor’s website. In June, 2013, the patient’s lawyer demanded the photos be removed. And the doctor quickly complied.
A lawsuit quickly followed alleging: (1) violation of the Civil Rights Law§§ 50 and 51; (2) unjust enrichment; (3) breach of fiduciary duty; (4) public disclosure of private facts about plaintiff; and (5) negligence per se for violation of: (a) Civil Rights Law§ 50; (b) HIPAA Privacy Rule; (c) CPLR § 4504(a); (d) Education Law§ 6509(9); and (e) 8 NYCRR 60.l(d).
The court concluded that there were two consents. The first consent broke down the different ways photos
might be used with the patient signing in the adjacent line – authorizing or denying consent for that use. This is a defendable way to obtain consent for photos in a surgeon’s practice.
The problem in this particular case is that the patient explicitly did not consent to the use of her pictures on the surgeon’s website.
As noted earlier, the broader second consent stated: “If, in the judgment of the Doctor, medical research,
education, or science will benefit from their use, such photographs and related information may be published and republished in professional journals or medical books, or used for such publication or use, including as presentation material.”
Even if the website is arguably an educational forum, authorization to use photos is limited to publication in professional journals or medical book. The surgeon’s website is neither.
A granular consent to use photos might include:
The usage of these photographs, videos and/or digital images will be limited to:
___ Medical purposes related to case ___ Scientific purposes, including seminars and medical articles ___ Digital or printed materials for patients to view in the office(s) ___ Digital or printed materials to be included in newsletter to be sent to current or prospective patients
If you intend to use patient photos for any purpose, you must have the patient’s explicit (written) consent for that purpose. Further, HIPAA and HITECH allow the patient to withdraw such permission down the road. So, if a patient gives consent to use photos on your website and then rescinds that permission a year later, you are obliged to honor that request. Obviously, if the picture is disseminated in a medium that is permanent – such as book or medical journal, you cannot recall the material. But, you can make sure it is not re-published.
Adding additional language into a “Consent to Use Photos” may be helpful: If I ask Dr. X to terminate use of these photos, videos
and/or digital images, I will do so in writing and communicated to Dr. X, and recognize that it will likely take a reasonable time period to accomplish. For example, to remove such pictures from a web site, Dr. X will need to coordinate with a third party webmaster.
Further, termination of prospective use of photos, videos and/or digital images may have no effect on prior distribution- such as the case with medical journals. A published journal, for example, cannot be “recalled.”
▪ Source: http://blog.medicaljustice.com/consent-use-photos-lessons-multi-million-dollar-lawsuit/
3/7/2016
5
Title VII of the Civil Rights Act Pregnancy Discrimination Act of
1978 Americans with Disabilities Act Age Discrimination in
Employment Act of 1967 Equal Pay Act Fair Labor Standards Act(FLSA) Family Medical Leave Act Immigration Reform and Control
Act Negligent Hiring and Retention OSHA At-Will Employment COBRA Benefits
Employee Retirement Income Security Act (ERISA)
Fair Credit Reporting Act Federal Contributions Act (FICA) Federal Unemployment Tax
(FUTA) HIPAA and HITECH
Amendments Independent Contractor vs.
Employee Distinctions National Labor Relations Act Uniformed Services
Employment and Reemployment Rights Act
State unemployment compensation laws
State Workers compensation laws
Unreliability of resources, e.g. websites, trade journals.
Employees may rely on the advice or ask you to follow the advice.
Examples of the variety of advice provided.
Can a an employee who works on commission be asked to come in on his/her day off to fill the schedule? No, it is not legal to expect any
employee to work without the expectation of compensation. All work performed by an employee that benefits the business of the employer is required to be compensated.
However, the employer is not required to compensate an employee at the same rate that he or she receives providing chairside services.
Doctors can pay a different rate, sometimes called an "administrative rate" that is lower than what the employee typically earns chairside.
Is it legal for a doctor to request that I do a "working interview" for no pay? The whole idea of the working interview is for a potential employer to see how a
candidate interacts with patients and other staff members, and to gauge the quality of his or her work.
One reason an employer might request that the working interview be
uncompensated is to prevent the applicant from applying for unemployment benefits if he or she is not hired…. it is not legal for a potential employer to have a candidate provide uncompensated services if the doctor is receiving fees from people being seen by the candidate.
For example, if the candidate is asked to come in and work for a half-day and see regularly scheduled patients, the candidate must be compensated. If the doctor asks the candidate to come in and treat someone who is not expected to pay for those services, such as the doctor him-/herself, or another staff member, there is no requirement to compensate the candidate. It would be like asking someone to submit a writing sample before being hired for a writer's position.
Is it legal to require me to clock out when I do not have a patient in my chair? Unfortunately, this question seems to pop up more and more. Evidently,
some doctors are asking their hygienists to clock out to avoid paying them when they do not have a patient. According to the Fair Labor Standards Act (FLSA) website (http://www.dol.gov/elaws/esa/flsa/hoursworked/screenER78.asp), the issue is whether the employee is "waiting to be engaged" or "engaged to be waiting." In the situation where a hygienist was expecting to see a patient and the patient did not show up, the hygienist is engaged to wait.
According to the website when an "employee is waiting for work to do, for repairs to be made, etc., while on duty, he or she is engaged to wait and the time is hours worked." I do not know if this has been tested in the courts, but it appears that it is not legal to ask a hygienist to clock out while effectively "on duty." "Engaged to wait" time is compensable, since it is controlled by the employer. If a patient walks in without an appointment, the waiting hygienist would be expected to seat the patient and provide some level of care. So the hygienist is engaged to wait.
Is it legal for the doctor to pay the assistants for their lunch break but not me? I am a hygienist.
Employers are not mandated to pay employees for
lunch breaks unless the employee would be engaged to work, such as answering the telephone or eating at one's desk in order to continue working. It does seem unfair to exclude the hygienist when the other staff members are being paid for the lunch break. Since hygienists typically are the highest paid staff members and often earn more than double the hourly rate of their coworkers, I guess doctors feel justified in treating them differently.
3/7/2016
6
Is it legal for the doctor to send me home when my schedule falls apart? Several times, I have expected to work a full day, only to be told at lunch that, due to cancellations, my afternoon has been cancelled. Actually, it is not illegal for employers to reduce working hours when there is not enough work.
However, as a consultant, what I have seen is a situation where the scheduling coordinator is not being held responsible for keeping the schedule full. Sometimes, I think it's just easier to shuffle a few patients around and send the hygienist home, rather than get busy and get serious about the schedule. I wonder how the scheduling coordinator would feel if the doctor came up front and said, "You just take the rest of the day off -- unpaid. We don't need you this afternoon …" Doctors can be shortsighted. They may feel they are saving money by sending the hygienist home, but they may not consider the cost of lost production plus any undiagnosed restorative dentistry that may have been lost as well.
I posed the question to Tim Twigg, president of Bent Ericksen and Associates, and he stated that there is nothing to preclude employers from reducing hours. "In some states, however, there are laws regarding reporting time pay and split shift differential which could impact cutting an employee's hours. Reporting time pay requires employers to pay employees for a minimum of two hours and as much as half of their shift if they're sent home early, but only when the employee has worked less than half of his or her shift when this occurs. Split shift pay may be required when an employee's shift is split into two separate blocks of time and that time is separated by more than one hour.
"The other aspect, which is whether or not there are any salary agreements in place, will vary from practice to practice. If Salaried then cannot cut pay.
Is it legal for the doctor to make me wait for my paycheck after he terminated my employment? According to the Department of Labor website, employers
are not required by federal law to give former employees their final paycheck immediately. Some states, however, may require immediate payment. If the regular payday for the last pay period an employee worked has passed and the employee has not been paid, the employee should contact the Department of Labor's Wage and Hour Division or the state labor department. DOL also has mechanisms in place for the recovery of back wages. http://www.dol.gov/compliance/topics/wages-other-last-paycheck.htm
Is it legal for the doctor to require me to take an extended lunch hour when a patient cancels and the business desk shuffles my patients around?
Again, I presume the doctor is trying to find a way to not pay you when you don't have a patient in your chair. I see two problems here. First, the business desk is asking patients to change their appointment times. That may or may not be OK with them. People often arrange their schedules to accommodate a dental appointment, and it may seem like an imposition to them to be asked to change. The other problem is the question of whether you are being engaged to wait or waiting to be engaged (see No. 3). The expectation is that you will work a full day, and the rules are being changed to fit the circumstance to the employer's advantage. My feeling is that you should be paid for the hour, even if it is at a different pay rate. It certainly seems disrespectful to you as a hygienist and unfair when no one else is being asked to do the same thing. My advice is to pose your question to an attorney who specializes in employment law.
I posed your question to Tim Twigg: "You bring up a good point with regard to waiting time. If an employee is getting hours cut by getting a longer lunch break, then the time spent at lunch must be for the employee's own purposes in order for it to be unpaid. If the employer requires him or her to stay at the practice and wait until a patient comes in, then that's not allowing the time to be spent as the employee chooses. This could be considered "waiting time" and, therefore, would need to be paid."
For more information on laws regarding labor issues, please consult the Department of Labor website for state-specific information regarding wage and hour laws. http://www.dol.gov/compliance/topics/wages.htm
You can visit the Fair Labor Standards Act website at http://www.dol.gov/whd/flsa/.
Failing to provide a final paycheck to an employee who has not returned company property- can you withhold $$? Employers are not required by federal law to
immediately give former employees their final paycheck. Some states, however, may require immediate payment, regardless of whether laptops, company phones, etc. have been returned – basically as soon as the words “you’re fired” are uttered. Contact your State Labor Office for information on employer requirements in your state.
Can employers use criminal records in hiring decisions?
Can an employer ask about my conviction record in an interview?
3/7/2016
7
I was denied a job and think it was because of my criminal or arrest record. What do I do?
What is the 'Ban the Box' campaign, and how does it relate to criminal records? Ban the Box is a campaign to remove questions about past criminal convictions from job applications and push
background checks to a later point in the hiring process. The idea is to give applicants a chance to prove their qualifications to an employer without the stigma of a past criminal conviction.
The campaign has been growing with over 100 counties and cities, including New York City, adopting Ban the Box style laws and 18 states. Furthermore, the federal government has “banned the box” in regards to federal employers, though not federal contractors. The following states have some form of Ban the Box laws: California; Colorado; Connecticut; Delaware; District of Columbia; Georgia; Hawaii; Illinois; Maryland; Massachusetts; Minnesota; Nebraska; New Jersey; New Mexico; Ohio; Oregon Rhode Island; Vermont; and Virginia
