Administrative Final Orders Must State Findings of Fact Based on the Evidence Presented

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by the Florida Bar in Health Law

Following is a summary of a recent appellate case on an issue relevant to health law:

Borges v. Dep’t of Health, 143 So. 3d 1185 (Fla. 3d DCA 2014).
Gustavo Borges (Borges) appealed a final order of the Florida Board of Dentistry that revoked his license to practice dentistry based on a conviction of the knowing receipt of child pornography under a federal statute.

At hearing, eight lay witnesses and four expert witnesses testified. In the recommended order’s discussion of the evidence presented, which was the basis for the Board’s final order, the administrative law judge (ALJ) discussed the testimony of only one witness-Borges-after concluding that a statement by Borges constituted a concession that established that his conviction was related to his ability to practice dentistry. No other testimony was discussed in the order, or even acknowledged.

On appeal, the appellate court concluded that the ALJ’s recommended order adopted by the Board did not comply with one of the requirements of section 120.57, Florida Statutes-that an ALJ’s order must contain “express findings of fact.” The court was quick to point out that, while the findings of fact did not have to address the testimony of every witness (i.e., all twelve here), the order must at least address the factual controversies at issue to the extent they are relevant to the disposition, or address why the testimony is irrelevant. Having failed to do so in this case, the appellate court reversed and remanded.

The case summary above was originally published in the Administrative Law Section Newsletter, Vol. 34, No. 2 (Dec. 2014), a publication of The Administrative Law Section of The Florida Bar.

Editor’s Comments on Case Summary.

This case demonstrates an important concept in administrative law. This is, an administrative law judge is required to discuss the evidence presented at the hearing and make specific findings of fact based on that evidence. Failing to do this in the recommended order (RO) can lead to reversal by an appellate court.


Comments?

Do you think the appellate court should have reversed? Do you think it was important to discuss all testimonies in this case? Please leave any thoughtful comments below.


Contact Health Law Attorneys Experienced in Handling Licensure Matters.

If you have been arrested, it is strongly recommended that you retain an experienced healthcare attorney who can advise you as to the effects a potential outcome could have on your license.

The attorneys of The Health Law Firm routinely represent physicians, pharmacists, nurses, and other healthcare practitioners in licensure matters. We frequently consult with criminal defense attorneys regarding defense strategies tailored to minimizing criminal sanctions while preserving the practitioner’s license.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.


About the Author
: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone (407) 331-6620.

KeyWords: Criminal law, license, defense attorney, health law, health care attorney, health care lawyer, health investigation, medical license, conviction, desntist, dentist criminal charges, Department of Health, DOH, professional license, federal statutes, license disciplined, license revoked, health attorney, finding of guilt, adjudication withheld, diversion program, DOH conviction, adjudication, discipline, criminal trial, defense lawyer, ALJ, administrative law judge, administrative law, appellate court, administrative orders, Florida Board of Dentistry, Board of Dentistry, dentistry, statutes, testimony

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2015 The Health Law Firm. All rights reserved.

Board of Dentistry Considers Adding Failure to Provide Dental Records to “Citation” Offenses

4 Indest-2009-3By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At the Florida Board of Dentistry meeting held on November 21, 2014, it discussed a proposed change to Rule 64B5-13.0046, Florida Administrative Code. The amendment would add a provision for failing to timely produce dental records to patients. This addition should help dentists avoid receiving permanent discipline on their records for a minor technical violation.

Considered was the addition of the following language to the existing Rule, listing citation-approved offenses:

Violation of subsection 466.028(1)(n), F.S., failure to timely make available to a patient or client, or to his legal representative or to the Department, if authorized in writing by the patient, copies of documents in the possession or under control of the licensee, which relate to the patient or client. Timely means less than 30 days from the receipt of the written authorization. The subject of the citation has 10 days from the date the citation becomes a final order to release the patient records. Failure to comply will result in a $1,000.00 fine.


Citation vs. Charge
.

TIDCHAAn administrative citation such as those discussed is not considered to be discipline, but an alternative to discipline. The dentist can accept the citation and pay the fine; therefore the citation will not be recorded on his/her record as discipline. For more on this issue, read my blog on citations against physicians and other health professionals.

This is a good development for dentists as it allows the resolution of minor technical violations of statutes and rules without the very undesirable effect of creating a disciplinary record. We sometimes jokingly refer to these as “speeding tickets” since they carry a fine but are not considered to be permanent disciplinary action.

Carefully Review and Promptly Respond in Citation Cases.

Take immediately action on any proposed citation you receive from the Department of Health (DOH). Consult immediately with a health attorney who is experienced at representing dentists in Board of Dentistry matters. Click here for a previous blog on why you should speak with an attorney first.

In most cases, you will probably be advised to accept the citation and pay the fine. If so, be sure to submit the signed agreement, ending it by a method that documents sending and receipt (such as certified mail, return receipt requested), and keep a copy of all documents you submit. Make sure it is received (not sent) by the due date. Call to make sure it was received.

For additional information on citations in disciplinary cases, click here.

In Limited Circumstances, You May Not Want to Accept the Citation.

insurance policyIn limited circumstances, it may not be advisable to accept a citation. This may occur if there is pending litigation involving the subject of the citation. If the wrong person is named in the citation, this may be another reason for not accepting it. If you did not commit the offense and you are sure you can prove this, you may also desire to not accept the citation. This is especially true if you have dental liability insurance coverage which pays for a legal defense in such administrative disciplinary cases involving professional license defense.

For more information on dental license defense, read this previous blog.

If You Do Not Accept the Citation, Be Prepared for an Administrative Complaint.

If you do not accept the citation within the limited time given (usually 30 days), or if you send back a statement regarding why it is unfair or why you did not commit the violation, this will usually be treated as a statement disputing material facts. In this event, the case will be treated as though you were requesting a formal administrative hearing. You will be given a regular formal hearing (trial) with an administrative law judge from the Division of Administrative Hearings (DOAH). For information on hearings in dental cases, click here.

Be Sure Your Staff Knows How to Treat Record Requests.

Be sure that when your office receives a request for a patient’s dental chart that the request is promptly reviewed by someone in management. Management must make sure the authorization or subpoena is valid (remember HIPAA) and that the record is provided in a timely manner. Paying attention to such requests may allow you to detect and act on potential dental medical malpractice claims or DOH complaints. You should have a written office policy on this that every employee has signed.

Remember you are not authorized to withhold a patient’s dental record because the patient has not paid a bill. You are not authorized to withhold the chart because you are angry at the patient or the patient has threatened to sue you. Be sure to provide the patient (or his/her representative) a copy of the record within 30 days. Keep a copy of the letter transmitting the copy in the chart and annotate the HIPAA medical information disclosure form in the record.

Comments?

What do you think of a citation versus a charge in regard to promptly getting patients their dental records? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

We routinely provide deposition coverage to dentists, dental hygienists and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of Dentistry hearings. Call now or visit our website http://www.TheHealthLawFirm.com.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.Copyright © 1999-2015 The Health Law Firm. All rights reserved.

 

Florida Board of Dentistry Proposes Change to Minimum Record Keeping Requirements for Dentists

DPP_1By Christopher E. Brown, J.D., The Health Law Firm

On August 22, 2014, the Florida Board of Dentistry will meet to discuss implementing new requirements for record keeping. We believe that these changes are due to the Board’s concern over potential ambiguity with the current regulations, and due to the recent difficulty it had in disciplining Florida dentists for record keeping violations.

Read on for an outline of the proposed new requirements. Be sure to check this blog regularly. We will have a firm representative at this meeting and will post any updates.

Current Florida Rule.

Rule 64B5-17.002, Florida Administrative Code, provides the minimum record keeping requirements placed on Florida’s dentists. Currently, the rule requires a dentist to record the following information:

(a) Appropriate medical history;
(b) Results of clinical examination and tests conducted, including the identification, or lack thereof, of any oral pathology or diseases;
(c) Any radiographs used for the diagnosis or treatment of the patient;
(d) Treatment plan proposed by the dentist; and
(e) Treatment rendered to the patient.

Outline of Proposed New Requirements.

The proposed rule change will amend the Rule 64B5-17.002, Florida Administrative Code, as follows:

(a) Appropriate medical history, including any current or previous medical conditions, surgeries, hospitalizations, medications, and legible blood pressure readings (when taken). The updating and review of the medical history must also be documented.
(b) Results of clinical examinations and tests conducted, including the identification, or lack thereof, of any oral pathology or diseases.
(c) Any radiographs to include Cone Beam Computer Tomography (CBCT), and the results used for the diagnosis or treatment of the patient.
(d) Treatment plan and treatment options proposed by the dentist.
(e) Treatment rendered to the patient, including but not limited to the following, when applicable to the treatment performed:

(i) Type, amount, and mode of delivery (i.e., Mandibular block, Infiltration, etc.) of local anesthesia used;
(ii) Type and shade of restorative material used;
(iii) Preoperative and/or postoperative medications prescribed;
(iv) Medications delivered, administered, or provided to the patient during treatment or for use following treatment;
(v) Radiographs taken;
(vi) Impression material and type of impression taken (i.e., maxillary, mandibular, interocclusal, digital, etc.);
(vii) Medicaments, medications, sutures, irrigants, or bases applied to teeth or   periodontal tissues;
(viii) Names or initials of all staff involved with clinical care of the patient;
(ix) Use of dental barrier or rubber dam;
(x) Tooth or arch treated identified by name, number or letter;
(xi) Working length, canals treated, identify untreated canals and reason left untreated,  master apical file size, and obturation materials used during endodontic procedures; and
(xii) Unusual or unexpected events or reactions during or after the procedure including, but not limited to separation, breakage, retention, swallowing or aspiration, of any  instrument or portion thereof.

In addition to the above changes, the Board is also seeking a number of other amendments to the rule, including additional requirements for record alterations and duties of dentists of record.

The complete proposed rule change can be found at: http://bit.ly/1vr4Cxw

Comments?

Did you know about these proposed changes? If imposed, how will the changes affect you? Please leave any thoughtful comments below.

Consult With An Attorney Experienced in the Representation of Dentists.

We routinely provide deposition coverage to dentists, dental hygienists and other health professionals being deposed in criminal cases, negligence cases, civil cases or disciplinary cases involving other health professionals.

The lawyers of The Health Law Firm are experienced in both formal and informal administrative hearings and in representing dentists and dental hygienists and other health professionals in investigations and at Board of Dentistry hearings. Call now or visit our website http://www.TheHealthLawFirm.com.

About the Author: Christopher E. Brown, J.D., is an attorney with The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. http://www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2014 The Health Law Firm. All rights reserved.

Florida Dentist Performs Disappearing Act With Patients’ Money

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

A Pensacola, Florida, dentist has disappeared, with his patients’ cash, and now the Escambia Sheriff’s Office is looking for both, according to a number of news sources. According to the Pensacola News Journal, the dentist closed his practice months ago without alerting his patients or performing services for which they had already paid. On January 23, 2014, the sheriff’s office sent out a request for former patients of the dentist to come forward.

Click here to read the Pensacola News Journal article.

Dentist’s Checkered Past.

According to the Florida Department of Health (DOH), in 2003 and 2006, the dentist had disciplinary actions taken against him by the Florida Board of Dentistry. The Board ruled that the dentist was negligent and failed to meet minimum standards of dental performance for misdiagnosing a patient and failing to correct the patient’s dental issues. The Board also ruled that the dentist misrepresented himself as an orthodontic specialist, when he was a general practice dentist practicing in the area of orthodontics. Click here to view the discipline cases.

Currently, the DOH website lists the dentist’s license as active.

Victims Paid for a Number of Services Never Performed.

According to the Escambia Sheriff’s Office, a number of former patients have already come forward. They claim they paid for braces, dentures and other orthodontic work that was never performed. The sheriff’s office is looking for other former patients. The ABC station in Pensacola is reporting that these victims are organizing themselves on a Facebook group.

Click here to watch the news story.

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

Our firm also routinely represents physicians, dentists, orthodontists, medical groups, clinics, pharmacies, home health care agencies, nursing homes and other health care providers in Medicare and Medicaid investigations, audits and recovery actions.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Comments?

What do you think of this story? Please leave any thoughtful comments below.

Sources:

Robinson, Kevin. “ECSO: Investigators Seeking Victims of Disappearing Dentist.” Pensacola News Journal. (January 23, 2014). From: http://www.pnj.com/article/20140123/NEWS11/140123006/ECSO-Investigators-seeking-victims-disappearing-dentist?nclick_check=1

Fernandez, Jenise. “Updated: Orthodontist Disappearance Investigation.” WEAR. (January 23, 2014). From: http://www.weartv.com/news/features/top-stories/stories/updated-orthodonist-disappearance-investigation-40700.shtml

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999. 

Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Board of Dentistry Warns About Responding to or Consulting with Individuals Over Internet About Dental Issues

8 Indest-2008-5By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At the Florida Board of Dentistry meeting held on November 15, 2013, one of the committee chairs discussed an issue that has arisen nationally that is causing dentists legal problems. The issue arises when individuals contact a dentist over the internet seeking “information” on a dental condition or problem, and possible actions or procedures that can resolve these issues.

The concern with this is that the dentist may actually be diagnosing a dental condition or problem the individual has. The bigger concern is that if the individual contacting the dentist for information is in a different state from the one in which the dentist is licensed. Then the dentist is actually practicing dentistry in the state in which the individual is located.

In this blog I will discuss some of the issues a dentist can encounter when diagnosing a condition or problem over the internet. I will also talk about ways a dentist can reduce his or her risk.

Issues Dentists Can Face When Diagnosing a Condition Over the Web.

This can cause a myriad of different problems for the dentist involved in these situations:

1.  By diagnosing in a state in which the dentist is not licensed, he or she is engaging in the unlicensed practice of dentistry in that state. This can lead to criminal charges in that state and disciplinary actions in the state where the dentist is licensed.

2.  Cases have arisen where incorrect diagnoses have been rendered because the individual failed to provide complete information and the dentist failed to physically examine the individual or follow other procedures normally followed.

3.  There have been instances where such individuals have filed complaints or claims against dentists for providing them information upon which they relied.

4.  In most cases, a dentist’s professional liability (dental malpractice) insurance will not cover professional negligence in another state.

Recommendations to Reduce Risk.

I recommend that dentists take the following steps to help reduce risk if involved in providing information to non-patients over the internet or in the media (radio, television, newspaper, etc.):

1.  Make sure that you have proper warnings and disclaimers that are included in every such e-mail communication or listserv communication you make. Include:

A.  Include the state in which the dentist is licensed/practicing and state that the communication is not considered to be diagnosing, prescribing, treating or practicing any profession in any other state or jurisdiction.

B.  Include a disclaimer or statement in every e-mail listserv or other communication with non-patients that you are providing general information for educational purposes only and the individual must see and follow the advice of a dentist in his or her geographic area to make any diagnoses.

C.  Include that the person receiving the information cannot rely on it for treatment purposes since an actual physical examination must take place before any reliable information/recommendations can be made in any individual’s case.

2.  Inquire with your professional liability insurer or agent to ask about “broad form coverage” and attempt to obtain coverage that includes educational activities, marketing activities and other similar activities. Make sure the broad form coverage also covers these activities in different states.

3.  Make sure your professional liability insurance provides coverage for legal expenses involved in defending against administrative complaints and investigations initiated by any state or federal agency that could result in disciplinary action against you or your license. You probably need at least $25,000 in coverage for this. However, $50,000 or $75,000 in coverage for such matters is preferred. Buy this coverage separately if necessary. Lloyd’s of London provides such coverage separately.

4.  Find out where the individual contacting you resides or is communicating from. Require complete information, including complete name, address and telephone numbers.

5.  Be extremely reluctant to criticize care, services, procedures, materials or appliances used or prescribed by other dentists.

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at http://www.TheHealthLawFirm.com.

Comments?

Have you ever been asked to consult with a patient over the internet? Did you know all of these issues could up? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  http://www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Board of Dentistry Warns About Responding to or Consulting with Individuals Over Internet About Dental Issues

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

At the Florida Board of Dentistry meeting held on November 15, 2013, one of the committee chairs discussed an issue that has arisen nationally that is causing dentists legal problems. The issue arises when individuals contact a dentist over the internet seeking “information” on a dental condition or problem, and possible treatment or procedures that can resolve these issues.

The concern is that the dentist may actually be diagnosing a dental condition or problem the individual has. The bigger concern arises if the individual contacting the dentist is in a different state from the one in which the dentist is licensed. Then the dentist is actually practicing dentistry in the state in which the individual is located.

In this blog I will discuss some of the issues a dentist can encounter when diagnosing a condition or problem over the internet. I will also talk about ways a dentist can reduce his or her risk.

Issues Dentists Can Face When Diagnosing a Condition Over the Web.

Diagnosing a non-patient over the internet can cause a myriad of different problems for the dentist involved, including these situations:

1. By diagnosing in a state in which the dentist is not licensed, he or she is engaging in the unlicensed practice of dentistry in that state. This can lead to criminal charges in that state and disciplinary actions in the state where the dentist is licensed.

2. Cases have arisen where incorrect diagnoses have been rendered because the individual failed to provide complete information, and the dentist failed to physically examine the individual or follow other procedures normally followed.

3. There have been instances where such individuals have filed complaints or claims against dentists for providing them information upon which they relied.

4. In most cases, a dentist’s professional liability (dental malpractice) insurance will not cover professional negligence in another state.

Recommendations to Reduce Risk.

I recommend that dentists take the following steps to help reduce risk if involved in providing information to non-patients over the internet or in the media (radio, television, newspaper, etc.):

1. Make sure that you have proper warnings and disclaimers that are included in every such e-mail communication or listserv communication you make.

A. Include the state in which the dentist is licensed/practicing and explain that the communication is not considered to be diagnosing, prescribing, treating or practicing any profession in any other state or jurisdiction.

B. Include a disclaimer or statement in every e-mail listserv or other communication with non-patients that you are providing general information for educational purposes only, and the individual must seek and follow the advice of a dentist in his or her geographic area to make any diagnoses.

C. Include that the person receiving the information cannot rely on it for treatment purposes since an actual physical examination must take place before any reliable information/recommendations can be made in any individual’s case.

2. Inquire with your professional liability insurer or agent to ask about “broad form coverage” and attempt to obtain coverage that includes educational activities, marketing activities and other similar activities. Make sure the “broad form coverage” also covers these activities in different states.

3. Make sure your professional liability insurance provides coverage for legal expenses involved in defending against administrative complaints and investigations initiated by any state or federal agency that could result in disciplinary action against you or your license. You probably need at least $25,000 in coverage for this. However, $50,000 or $75,000 in coverage for such matters is preferred. Buy this coverage separately if necessary. Lloyd’s of London provides such coverage separately.

4. Find out where the individual contacting you resides or is communicating from. Require complete information, including complete name, address and telephone numbers.

5. Be extremely reluctant to criticize care, services, procedures, materials or appliances used or prescribed by other dentists.


Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Have you ever been asked to consult with a patient over the internet? Did you know all of these issues could up? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law. He is the President and Managing Partner of The Health Law Firm, which has a national practice. Its main office is in the Orlando, Florida, area. www.TheHealthLawFirm.com The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone: (407) 331-6620.

 

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.

Florida Law Prohibits Control of a Dental Practice by a Nondentist

1 Indest-2008-1By George F. Indest III, J.D., M.P.A., LL.M., Board Certified by The Florida Bar in Health Law

Florida has long been a state that does not prohibit the corporate practice of medicine, unlike many other states. However, it does prohibit the corporate practice of dentistry.  The key provision in Florida law that establishes this is Section 466.028, Florida Statutes, but the Florida Board of Dentistry has also adopted administrative rules on this topic, as well.

What this means is that any corporation (or other type of business entity) that owns or operates a dental practice, under Florida law, must be one solely owned by and controlled by dentists. In this context, the term “dentists” means those licensed to practice dentistry in the state of Florida, with an active license.  Someone licensed in another state or who has a suspended or revoked license in Florida, would not meet that requirement.

Dentists Entering into Certain Types of Contracts Needs to Be Sure They Comply with the Law.

There may be certain types of contracts and agreements that a dentist or dental practice may legally enter into, especially ones that would provide administrative services or other types of non-professional services to the dentist.  These might include, for example, payroll services, staffing services (except for professional staff such as dental technicians), billing and collections services (provided the dentist retains final authority over such matters), marketing services, equipment leases (provided the dentists retains all control over the equipment), office leases, management services, or combinations of the above.  However, since any of these types of agreements may be worded so as to violate the law, a dentist should always have such an agreement reviewed in advance by his or her own experienced health attorney.  The dentist entering into any such contract must make sure he or she complies fully with the law.

Section 466.028(2), Florida Statutes, states that the purpose of the statute is to prevent any nondentists from attempting to influence or interfere with the professional judgment of the dentist.

Acts Prohibited by Law.

Acts specifically prohibited by the law include allowing a nondentist or business entity owned by a nondentist to:

1.    Employ a dentist or dental hygienist in the operation of a dental office;

2.    Control the use of any dental equipment or material while such equipment or material is being used for the provision of any dental services;

3.    Direct, control or interfere with a dentist’s clinical judgment;  and, specifically,

4.    Allowing any nondentist or organization owned by a nondentist to exercise control over:

a.    The selection of a course of treatment for a patient, the procedures or materials to be used as part of such course of treatment, and the manner in which such course of treatment is carried out by the dentist;

b.    The patient records of a dentist;

c.    Policies and decisions relating to pricing, credit, refunds, warranties and advertising; or

d.    Decisions relating to office personnel and hours of practice.

Violating Law is a Felony.

Any of these acts can result in disciplinary action against any licensed dental professional involved. More importantly, violation of this law is also a felony which may result in criminal prosecution for any person involved.  Contracts which violate the law are null and void.

Always have any contract relating to the operation of your dental practice reviewed by an experienced board certified health lawyer before signing it.

Contact Health Law Attorneys Experienced in Representing Dentists.

The attorneys of The Health Law Firm provide legal representation to dentists in Department of Health (DOH) investigations, Drug Enforcement Administration (DEA) investigations, FBI investigations, Board of Dentistry and other types of investigations of health professionals and providers.

To contact The Health Law Firm, please call (407) 331-6620 or (850) 439-1001 and visit our website at www.TheHealthLawFirm.com.

Comments?

Did you know about this Florida Law that prohibits control of a dental practice by a nondentist? Please leave any thoughtful comments below.

About the Author: George F. Indest III, J.D., M.P.A., LL.M., is Board Certified by The Florida Bar in Health Law.  He is the President and Managing Partner of The Health Law Firm, which has a national practice.  Its main office is in the Orlando, Florida, area.  www.TheHealthLawFirm.com  The Health Law Firm, 1101 Douglas Ave., Altamonte Springs, FL 32714, Phone:  (407) 331-6620.

“The Health Law Firm” is a registered fictitious business name of George F. Indest III, P.A. – The Health Law Firm, a Florida professional service corporation, since 1999.
Copyright © 1996-2012 The Health Law Firm. All rights reserved.