Compliance Self-Assessment

The Association of Dental Support Organizations (ADSO) and its member dental support organizations (DSO) are committed to compliance with Applicable Law.[1] The self-assessment is intended to provide member DSOs and affiliated dental providers/practices (ADP) with a tool to help facilitate internal compliance review. Each DSO and ADP is responsible for their own individual compliance programs and efforts.[2] The self-assessment highlights general issues and information that may be relevant to DSOs and ADPs. It is not intended to be exhaustive as Applicable Law varies by jurisdiction, and general business laws and regulations including, but not limited to, employment, franchise, securities, ERISA, zoning, tax and other laws and regulations that are beyond the scope of this checklist. The ADSO is not providing legal advice and encourages member DSOs and ADPs to work their legal counsel regarding all compliance matters.

A. Ownership/Control

  • Service agreements and other agreements or arrangements between the DSO and dentists or dental practices comply with applicable jurisdictional/state laws governing the corporate practice of dentistry -­‐-­‐ including prohibitions on controlling the dental practice or interfering with dentists’ professional judgment.
  • Employment or engagement of dentists, dental hygienists and dental assistants comply with jurisdictional/state dental practice laws and regulations governing the employment or engagement of such dental personnel -­‐-­‐ including hiring, supervision, compensation, termination and restrictive covenants.
  • Ownership and custody, care and control of furniture, fixtures, dental and non-­‐dental equipment, instruments and supplies comply with applicable jurisdictional/state requirements -­‐-­‐ including any prohibitions on DSO control of the assets or rent based on a percentage of practice revenue or profits.
  • Office leases, subleases or licenses with dental practices comply with applicable jurisdictional/state laws -­‐-­‐ including any prohibitions on DSO leasing of the office space or rent based on a percentage of practice revenue or profits.
  • Fee schedules are determined and controlled by the dental practice in accordance with applicable jurisdictional/state laws.
  • Any DSO control over practice deposits and bank accounts comply with applicable jurisdictional/state laws.

B. Fee-Splitting

  • Management or service fees payable to the DSO comply with jurisdictional/state prohibitions on fee-­‐splitting -­‐-­‐ including those prohibiting the sharing of fees in exchange for referral of patients, as well as statutes, regulations and case law that prohibit management or service fees based on a percentage of practice revenue or profits as a form of fee-­‐splitting.
  • Management or service fees comply with jurisdictional/state and federal “anti-­‐kickback statutes” and regulations, to the extent applicable.
  • Management or service fees comply with applicable jurisdictional/state and federal requirements that the fees represent fair market value.

C. Management Services Agreements or Similar Agreements or Arrangements

  • Management service agreements and other arrangements comply with all applicable jurisdictional/state dental laws and regulations that specifically address those types of agreements or arrangements (and DSO/dentists/dental practice properly performing under the agreements) -­‐-­‐ including any limitations on the length of the term of the agreement or control by the DSO of certain aspects of the dental practice.
  • The management service agreements and other arrangements do not provide for a management or service fee based on a percentage of practice revenue or profits, if prohibited by applicable jurisdictional/state laws.
  • Management service agreements and other arrangements are provided to or approved by applicable jurisdictional/state dental boards to the extent required.
  • Management service agreements and other arrangements include any language specifically required under applicable jurisdictional/state law -­‐-­‐ including references to care, custody and control of dental equipment, instruments and supplies.
  • The DSO is registered with applicable jurisdictional/state dental boards or other governmental offices to the extent required.
  • Each dental practice reports to the applicable jurisdictional/state dental board its arrangement with the DSO, to the extent required.

D. Dental Advertising and Marketing

  • All advertising on behalf of dental practices complies with applicable jurisdictional/state laws and regulations relating to dental advertising -­‐-­‐ including, but not limited to, those relating to: (i) the display of dentists’ names; (ii) advertising of fees and discounts; (iii) the use of testimonials and patient likenesses (proper release/acknowledgments are maintained); (iv) claims of superiority; and (v) advertising of specialties.
  • Trade names used by the practice comply with jurisdictional/state requirements -­‐-­‐ including registration with or pre-­‐approval by applicable state dental boards and prohibitions on the use of trade names in some states.
  • Advertising content is controlled and/or approved by the dental practice as required by applicable jurisdictional/state law.
  • Copies of all advertising is retained in the format and for the period of time required under applicable state laws.
  • Groupon® or similar marketing programs used by the practices comply with jurisdictional/state laws governing fee-­‐splitting and patient referrals
  • Call centers comply with any applicable jurisdictional/state laws governing patient referrals.
  • Arrangements with and gifts, rewards or payments to patients or referral sources, if any, comply with applicable jurisdictional/state/federal requirements.
  • Patient recruiters comply with applicable jurisdictional/state/federal laws governing the recruitment of patients.
  • Processes are implemented to assure ongoing compliance with jurisdictional/state/federal dental advertising and marketing laws.
  • Discount program marketing/materials distinguish program from insurance.

E. Patient Records

  • Patient records are owned and controlled by, and fully accessible to, the dental practice, as required by applicable jurisdictional/state laws.
  • Patient records are prepared timely, accurately, completely and otherwise in accordance with applicable jurisdictional/state/federal laws.
  • Patient records are stored and maintained in accordance with applicable jurisdictional/state laws -­‐-­‐ including those requiring that patient records be retained for a minimum period of time, and that a custodian be appointed for the patient records.
  • Patient records are made available to patients in accordance with applicable jurisdictional/state laws and regulations.

F. HIPAA and Jurisdictional/State Laws Governing Confidentiality and Patient Privacy

  • Business Associate Agreements (BAAs): The DSO and each dental practice are parties to a HIPAA business associate agreement that is updated to reflect recent changes in HIPAA statutes, rules and regulations. The dental practice is party to an updated HIPAA business associate agreement with each other contractor, service provider and “business associate” with access to patient information. The DSO is party to an updated subcontractor HIPAA business associate agreement with each subcontractor of the DSO with access to the practice’s patient information.
  • HIPAA Program Basics: The DSO and the practice have each appointed a HIPAA privacy and security officer; The DSO and practice have adopted, monitor and maintain updated, written HIPAA security and privacy policies and procedures and safeguards encryption of patient information maintained on laptops or transmitted via e-­‐mail, etc. DSO and practice have performed security risk assessment of potential threats and vulnerabilities to electronic health information, and adopted and assisted the practice in adopting physical, technical and administrative safeguards to protect the confidentiality and availability of the patient information; DSO and practice personnel are periodically trained on HIPAA policies and procedures (documentation maintained); Notice of Privacy Practices are made available to patients of the practice; HIPAA breaches are timely reported to the applicable patient(s) and government authorities to the extent required.
  • The DSO and practice comply with HIPAA and jurisdictional/state privacy laws in handling, transmitting, securing, disclosing and accessing patient information (process for handling records requests, HIPAA Log, record release and charges comply with applicable laws and regulations).

G. Dental Laboratories

  • Dental laboratories operated by the DSO or its affiliate comply with jurisdictional/state registration and licensing requirements.
  • Dental laboratories operated by the DSO or its affiliate comply with jurisdictional/state requirements for lab personnel.
  • Dental laboratories operated by the DSO or its affiliate comply with prohibitions on advertising to the general public.
  • Written work orders or authorizations for dental laboratory services comply with applicable jurisdictional/state requirements on form and content, and are retained as required for at least the minimum period of time.
  • The dental practices are not required to use a dental laboratory operated by the DSO, to the extent prohibited by jurisdictional/state law.

H. Provider Credentialing

  • Dentists and other dental providers are properly credentialed as required under applicable third party payor programs and contracts.
  • Dental services provided by non-­‐credentialed providers are not billed under the name or provider number of a credentialed provider who did not provide the service, except as permitted under the applicable payor program or contract.
  • Credentialing Policy & Procedure Basics: Mechanism to ensure annual renewals are filed and required licenses/permits are obtained/remain active; process to monitor government sanctions/exclusions provider lists; due diligence/background checks; record keeping/audit logs;

I. Claims Coding, Billing and Collection

  • Claims submitted to governmental and private payors on behalf of the practice are properly coded and submitted, in accordance with applicable laws and payor requirements.
  • Clinical documentation support the claims billed.
  • Claim are not submitted to any payor if they are knowingly false or include any false representations with respect to the nature of the services rendered, the charges for services rendered, the identity of the patient for whom the services were rendered, dates of services or otherwise (ensure dentists are providing dental services listed on billings/statements/Receipts).
  • Identified overpayments are refunded in accordance with applicable law and payor programs.
  • Co-­‐payments are collected from patients, including those “out of network,” in accordance with applicable jurisdictional/state/federal laws and payor programs.
  • Any Medicaid receipts are deposited into an account controlled by the dental practice.
  • Periodic plan/review of coding, billing and collection practices, and ensure periodic training.
  • Collections (including outside collection agencies) are conducted in compliance with FDCPA and other applicable jurisdictional laws and regulations.

J. Dental Personnel

  • All dentists, dental hygienists, dental assistants and dental auxiliaries are appropriately and currently licensed or permitted -­‐-­‐ including DEA registrations and x-­‐ray and nitrous oxide permits.
  • Dental personnel are employed or contracted by the DSO or practice in accordance with applicable jurisdictional/state
  • Dentists delegate tasks to dental hygienists, dental assistants and dental auxiliaries that are only within their respective scope of practice.
  • Dental hygienists, dental assistants and dental auxiliaries are supervised in accordance with applicable jurisdictional/state requirements.
  • Exclusion checks are performed, and periodically re-­‐performed, to determine if any employee or independent contractor is excluded from Medicaid or other governmental healthcare programs (see provider credentialing in Section H.).
  • Compensation, bonus, and wage and hour compliance. Posters to notify employees of jurisdictional/state/federal requirements.
  • Employee documents are secure and policy defines accessibility.

K. Dental Offices

  • Signage on each dental office complies with applicable jurisdictional/state requirements -­‐-­‐ including requirements to post the names and other information about the owner dentist and/or each dentist practicing in the office.
  • All required permits/inspections are in effect, including those for x-­‐ ray machines (review radiation control/protection program as applicable (handheld x-­‐ray machines)) and conscious sedation (if applicable).
  • Dental office emergency plans and protocols are in place and regular training and drills are conducted.
  • Medical waste and disposables are maintained and disposed of in accordance with applicable jurisdictional/state/federal laws.
  • Each practice complies with applicable infection control and sterilization requirements. Hazard assessment. Blood borne pathogen and protective equipment training periodically conducted and documented. Periodic spore testing is conducted and documented in accord with jurisdictional/state regulations (per CDC records retained 3 years).
  • Pharmaceuticals, Controlled Substances and DEA: registrations and DEA #’s; facility security; inventory protocols and controls (including drug logs), and prescription pads are maintained in accordance with applicable jurisdictional/state/federal laws.
  • The DSO and dental practices comply with applicable OSHA requirements. OSHA Basics: OSHA manual maintained and updated, OSHA training, mock audit; MSDS manual and safety documentation.
  • Each dental practice complies with applicable jurisdictional/state requirements on parental access and informed consent.
  • Each dental practice complies with applicable jurisdictional/state requirements on the use of papoose boards and other immobilization restraints.
  • Practices with multiple offices within a jurisdictional/state comply with applicable state restrictions or registration requirements.

L. Mobile or On-site Dentistry

  • Mobile or on-­‐site operations by any practice are currently registered with, or have a current permit from, the jurisdictional/state dental board to the extent required.
  • Mobile dental units satisfy all physical requirements -­‐-­‐ including those regarding sterilization, access, potable water and toilet facilities.
  • Patient records for mobile or on-site operations are maintained in accordance with applicable jurisdictional/state requirements.
  • Arrangements for mobile or on-site operations are made for emergency or follow-­‐up care at a physical location in accordance with applicable jurisdictional/state requirements.

M. PCs or PLLCs

  • The practice operates through a domestic or foreign professional corporation, or professional limited liability company or other authorized entities “Practice Entity” in accordance with applicable jurisdictional/state requirements.
  • Owners, directors, managers, members, stockholders, incorporators and officers of each Practice Entity satisfies all jurisdictional/state licensing requirements for those positions.
  • Owners of each Practice Entity satisfies applicable jurisdictional/state requirements to “actively practice” in the jurisdictional/state.
  • Each Practice Entity is registered with the applicable jurisdictional/state dental board to the extent required under jurisdictional/state law.
  • The name of each Practice Entity complies with applicable jurisdictional/state naming requirements -­‐-­‐ including some jurisdictional/state requirements requiring the use of the name of the owner dentist or generally prohibiting trade names.

N. Compliance Plans and Policies

  • The DSO and dental practices maintain a formal compliance program to the extent required by applicable jurisdictional/state/federal law -­‐-­‐ including practices that receive more than $5.0 million per year in Medicaid reimbursement.
  • Compliance Plan Basics: Program established; Compliance Officer designated; Compliance Committee established; Training & Education (reporting requirements, methods for reporting noncompliance, fraud, waste, abuse); Risk Assessment; Monitoring effectiveness/metrics/corrective action; Compliance Plan document (including policies and procedures covering typical issues: reasonable and necessary services; documentation (patient record used in coding and billing (false claims, false statements, fraud); credit balances; record keeping and retention; patient referrals and payments (Anti-­‐kickback); discounts and gifts; confidentiality/privacy laws and regulations; Antitrust laws; Corporate Practice; Hotline/anonymous reporting).

O. Finance

  • Review finance agreements and cross-­‐collateralization/control issues to assume completion with applicable aforementioned compliance items.
  • Financial statements, financial audits, and bank accounts accurately reflect DSO/dentist/dental practice relationship/control.
  • Patient Financing: review (as applicable) patient financing plans, promissory notes; credit checks.

 

[1] Applicable Law: jurisdictional statutes, regulations, policies, rules, judicial and administrative decisions, applicable to the practice of dentistry, the ownership, operation, or management of a dental practice, and the licensing, credentialing, and certification of professional service providers.

[2] Checklist items designated ADP are solely within the purview and responsibility of ADP.