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Commercial Litigation | MONDAY, AUGUST 10, 2015 | S5
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likely have the unintended effect of curbing those administrative, non-clinical services and benefits a DSO provides in order for the dentist to focus on providing care to his patients. For instance, the settlement requires Aspen Dental to obtain the dental practice owner’s, who must be a licensed dentist in New York state, review and approval before implementing any decision(s) regarding any of the following:
• Contracts, including strictly adminis- trative agreements, on behalf of the dental practice;
• Budgets;
• Salaries and bonuses of administrative, non-clinical staff;
• HR and other administrative policies, procedures and forms;
• Discussing certain clinical and non-clini- cal aspects of the dental practice with clinical and non-clinical employees;
• Hiring of non-clinical staff;
• Any decision regarding management of revenue, profits, incomes, disbursements, bank accounts, third-party financial access, deposits, withdrawals and other financial matters;
• Any decision regarding financing options available to patients and insurance plan par- ticipation;
• Appropriate staffing levels; and
• The content of the dental practice’s website.
Most, if not all of the activities listed above do not impair or relate to the clinical judg- ment of the dentist. In a majority of states, such activities would most likely not even result in a violation of the corporate practice of dentistry if performed without approval of the dentist. In fact, in most instances the dentist does not want to approve the non- clinical, administrative tasks above, which is the reason he has hired a DSO to assist him in running the non-clinical aspects of the business—something he did not go to dental school to learn how to do, nor likely anticipated having to handle at the expense of patient care or quality. For these reasons, regulators should take note of the unintended consequences of their actions, and focus on the problematic practices that a few DSOs are committing, rather than regulating DSO activities generally.
Dental patients and dentists alike will continue to suffer from the consequences of recent government scrutiny surrounding DSOs. The traditional dental practice model is changing—solo practitioner practices are becoming more and more a model of the past
as the costs of complying with government and insurance regulation, purchasing dental equipment and other factors increase the time spent on the non-clinical aspects of the dental business. Regulators must recognize the ben- efits DSOs generally provide to ensure dental practices have assistance with such tasks, in order to keep costs low and reasonable for patients, to maintain state-of-the-art equip- ment and turn a profit to remain competitive. While we recognize that regulators have a
Solo practitioner practices are
becoming more and more a
model of the past as the costs of
complying with government and
insurance regulation, purchas-
ing dental equipment and other
factors increase the time spent
on the non-clinical aspects of the
FRIDAY, SEPTEMBER 27, 2013 I 49 dental business.
duty to curtail inappropriate practices that violate the law, including the corporate prac- tice of dentistry and fee-splitting restrictions, such regulation should be limited to such problematic practices to avoid unintended consequences to the quality of and access to patient care in certain states.
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1. In the Matter of Aspen Dental Management, Assur- ance No.:15-103, Assurance of Discontinuance under Ex- ecutive Law §63, Subdivision 13, available at http://www. ag.ny.gov/pdfs/ADMI_AOD-signed_by_ADMI.pdf.
2. See N.C. Gen. §90-40.2 and 21 N.C.A.C. R. 16X.0101 (requiring that the N.C. Dental Board review and ap- prove all management agreements entered into with a dentist in the state to ensure that they comply with law, including notarized verifications from both the dentist and management company that the dental board has re- ceived all relevant materials to review the management arrangement); see also N.C. State Bd. of Dent. Exam’rs v. Dental Care Prtns., 13 CV 2336 (N.C. Sup. Ct. 2013) (filing by the N.C. Dental Board against Dental Care Partners, a DSO seeking an injunction preventing the alleged un- licensed practice of dentistry in the state). But see N.C. State Bd. of Dental Exam’rs v. Fed. Trade Comm’n, 574 U.S. __ (2015) (ruling in favor of the FTC in a suit brought by the FTC against the N.C. State Board of Dental Examin- ers holding that the Board is subject to federal antitrust laws to ensure the Board is not acting out of certain anti- competitive motives (the Board is mainly comprised of dentists who are regulating other dentists)). See Texas S.B. 151 (83R) (2013) (introducing legislation that would require DSOs to register with the Texas State Board of Dental Examiners and impose specific requirements and prohibitions on the terms of management agreements entered into with Texas dentists and dental practice).
3. N.Y. Educ. Law §§6530(19) & 6531.
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