Getting Back to Work: Six Practical & Legal Considerations for Dentists

1. Employment Agreements

Do you have employment agreements with not only any associate dentists who are employees or independent contractors, but also written agreements with your office manager and administrators, hygienists, and assistants? Areas to be sure to have in writing with all of your staff and doctors include compensation, sick leave, vacation, non-compete restrictions, records ownership and maintenance, termination details, and post-termination agreements.

Additionally, with respect to employees after the return to work period is initiated, there remains the possibility that anyone may be a carrier of the COVID-19 virus. Employers should be prepared if an employee has been tested positive for COVID-19, not only in advising the infected employee, but also being prepared for informing all other coworkers. You may need to utilize the form letter, Communication to Employees COVID-19 Infection in the Workplace, which has the information for addressing this issue should it arise in your office.

To ensure that you have all of the pertinent terms of employment for each of your employees stated in writing, the Dental Office Staff Employment Agreement, and the two generic form Dentist Associate Agreements (Version 1 and Version 2), are all customizable to the exact details of your employee relations and policies.

2. Office Policy Manual

Do you have a current office policy manual? Many dental offices either

  • do not have an office policy manual, or
  • have an office policy manual that is either outdated or incomplete, or
  • have a generic office policy manual that does not include all of the necessary items

Like the employment agreement, the office policy manual will cover all of the issues and policies of how and by what systems and methods your business will be conducted relative to your employees. As covered within this document, the office policy manual will set the rules and standards for all workplace situations that may arise in a dental office, including employment related issues and emergency situations.

Legally, having an office policy manual can make the difference in many employee complaints or in responding to former employee unemployment applications. Relative to the current pandemic, an office policy manual can also cover how the office will address leave or furloughs, all prepared in advance. Certainly, the office policy manual sets the business’s baseline position for expectations of all employees, and can contribute greatly to an overall risk management strategy.

To ensure that you have all of the pertinent office policies stated in writing, get the Office Policy Manual, which is customizable to the exact details of your employee relations and policies.

3. Record-keeping Compliance

Are your records compliant? As a professional practitioner licensed by the State of Texas, your legal obligation to keep and maintain dental records according the the requirements set out by statutes and regulatory rules has always been mandatory. Although there are virtually no complaints that are specifically pointed at deficient record keeping, a patient’s records are the first item requested and subject to a complaint investigation.

Now more than ever, post-COVID 19, record-keeping compliance will be exceedingly important. There is a high probability that there will be a convergence of dynamics that may contribute to a higher incidence of patient complaints to the Texas State Board of Dental Examiners. Appointments will be double-booked, treatment times will be rushed, and record-keeping will most likely fall by the wayside, or at least not be up to the par you have set for yourself and your staff, and dangerously close to not being up to the standard expected by the TSBDE.

To ensure your regulatory compliance in the keeping and maintenance of your patient’s dental records, in addition to appropriate Consent Forms, get the Record-Keeping Compliance Checklist, and make sure these items are all included in every patient chart.

4. Preliminary Investigations

As outlined above, as a result of either business as usual, or due to the convergence of dynamics between patients and dental practitioners and team members there may be a higher incidence of patient complaints to the Texas State Board of Dental Examiners. Should a complaint actually arise, the first step in the investigative process after a patient submits a complaint to the Texas State Board of Dental Examiners is the Preliminary Investigation, pursuant to Texas State Board of Dental Examiners Rule 107.103.

Are you ready for an investigation? There are 20 items required by the Preliminary Investigation Checklist, a form sent along with the initial notice of an investigation that details all of the items expected by the Board to exist and for a copy or proof of to be submitted in response to a complaint. Doctors subject to an investigation many times find that numerous items required and listed on this form are either in the incorrect format, incomplete, or do not exist in their office at all.

To further ensure your regulatory and to be ready in the event of a patient complaint, get the Preliminary Investigation Checklist, and watch the webinar that address exactly how to prepare for an investigation should one arise.

Commercial Lease Review

Continuing Education Webinars*

[*No CE credit available for this webinar]

5. Lease Review & Negotiations

Does your lease allow for the abatement of rent during an office closure due to circumstances beyond your control? In the event of a closure, a tenant may have a right to abate rent during some or all of the closure. Some cities have laws that prohibit landlords from evicting tenants for a period of time for the non-payment of rent.

Force majeure clauses may excuse, or may require, rent payments, even in the face of events outside of the tenant’s reasonable control that prevent the tenant from performing its other obligations under a contract. Thus, even if the COVID-19 pandemic qualified as a force majeure event under a commercial lease, rent may still be due.In some circumstances, a landlord or tenant may have defenses to the enforceability of a lease such as the applicability of force majeure provisions in the lease, and certain performance of contract defenses such as impossibility, change of circumstances or frustration of purposes.

Regardless of where you are in your lease term, preparing for the next work stoppage can be accomplished through reviewing your current lease terms to identify the provisions controlling any possibility of an abatement of rent if necessary, and then developing a negotiation plan and a strategy for getting more favorable language including in a lease amendment, or negotiated into your new lease or optional extension.

Do you need to have a legal opinion regarding your lease terms, either to assess lease abatement options, or to prepare for lease renegotiation? Use the coupon code “LEASE” for a 50% reduced fee complete lease review.

6. Continuing Education

Given that risk management through proper record-keeping is the first line of defense in any complaint investigation, are you giving adequate time in your CE allotment for making sure you are up to date with all of the nuances and changes in the Board rules in the areas of risk management, record-keeping, and ethics?

As required by Texas Administrative Code Rule §104, it is a prerequisite to the biennial renewal of any dental or dental hygiene license that there exist proof of completion of 24 hours of acceptable continuing education.

At least 16 hours of this coursework must be either technical or scientific as related to clinical care, which are courses having significant intellectual or practical content designed to directly enhance the practitioner's knowledge and skill in providing clinical care to the individual patient.

Additionally, up to 8 hours of coursework may be in acceptable "risk management" courses, to include courses in risk management, record-keeping, and ethics (see Texas Administrative Code Rule §104.1, Requirement).

Follow the webinar page! Legal issues of concern to today's dentist are discussed, including TSBDE rule compliance, dental practice transitions, & employment. Follow this page to receive notices of upcoming webinars, and watch replays of past webinar presentations.

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