Dental Articles

The following “Legal Wellness Checklist” highlights some basic legal issues that commonly face dental professionals in Minnesota. This checklist, when appropriately used with legal consultation, can assist Minnesota dental professionals in identifying some areas in which they can implement measures to prevent or at least reduce the potential of future legal difficulties. The “Legal Wellness Checklist” is not a substitute for professional advice. Therefore, please carefully read the additional information that follows the checklist.

by Michael J. Weber - Weber Law Office

The following “Legal Wellness Checklist” highlights some basic legal issues that commonly face dental professionals in Minnesota. This checklist, when appropriately used with legal consultation, can assist Minnesota dental professionals in identifying some areas in which they can implement measures to prevent or at least reduce the potential of future legal difficulties. The “Legal Wellness Checklist” is not a substitute for professional advice. Therefore, please carefully read the additional information that follows the checklist.

• Minnesota Board of Dentistry and Practice-Related Issues
1. All dental professionals have read and understand the Board’s Practice Act and related rules, including the grounds for disciplinary action in Minnesota Statutes, Section 150A.08, and Minnesota Rules 3100.6200.
2. The dental practice complies with patient privacy laws, such as HIPAA and Minnesota State privacy laws. For example, the practice has a Notice of Privacy Practices, engages in adequate efforts to protect patient privacy, and uses HIPAA-compliant business associate agreements.
3. All dental professionals understand and comply with the Board’s record-keeping rule for patient records, as codified in Minnesota Rules 3100.9600.
4. All dental professionals understand and have implemented the Board’s infection control requirements, which by definition incorporate the CDC’s “Guidelines for Infection Control in Dental Health-Care Settings, 2003,” MMWR, December 19, 2003:52 (RR-17). (Please note that some portions are open to interpretation, and it is helpful to learn and understand the Board’s interpretation of those guidelines.)
5. All dental professionals thoroughly understand their legal scope of practice as well as the Board’s legal requirements for “Delegated Procedures” and associated “Levels of Supervision,” as outlined in Minnesota Statutes, Section 150A.10, and Minnesota Rules 3100.8400, 3100.8500, and 3100.8700.
6. For any responsibilities that have been delegated to professional or administrative staff (such as infection control, record-keeping, billing, etc.), one or more dentists regularly and competently review the adequacy of the staff’s compliance with the underlying legal requirements.
7. All dental professionals understand and are complying with the Board’s Professional Development Portfolio requirement (for continuing education and other similar requirements), including maintaining adequate documentation supporting that compliance.
• Employment/Independent Contractor Issues:
1. The dental practice has implemented, follows, and updates employment policies, as necessary.
2. All dental professionals (whether owners, associates, or auxiliary staff) have a contract that clearly outlines such issues as responsibilities, compensation and benefits, confidentiality, termination, non-competition/non-solicitation, and potentially alternative dispute resolution.
3. The dental practice has thoughtfully and appropriately classified anyone considered an independent contractor (versus an employee) to avoid significant potential penalties for improper classification.
4. The dental practice performs and documents annual performance evaluations.
5. All employees’ performance issues are appropriately and thoroughly addressed and documented.
6. Before terminating an employment relationship, the employer and employee have complied with any requirements for termination (for example, notice and/or adequate basis) and understand their rights and obligations (for example, compensation, COBRA, and unemployment).
• Business Liability Issues:
1. The office and the staff have adequate business and professional liability insurance.
2. The dental professional staff have recently taken a “risk-management” course, such as one offered by a professional liability carrier.
3. The office is organized in a manner that provides the owners with business liability protection (such as a corporation, LLC, or LLP).
4. The office complies with the formalities of treating a corporation, LLC, or LLP as a separate and distinct legal entity, including but not limited to: (a) personal and business accounts are not comingled; (b) contracts are signed on behalf of the business, not by a professional personally, whenever possible; (c) the business complies with business formalities for making decisions, including having regular Board and shareholder/member meetings, and keeps minutes of those meetings; (d) the business maintains its filings, including annual renewals, with the Minnesota Secretary of State, as necessary; and (e) the business maintains, follows, and updates articles, bylaws, and/or other organizational documents.
5. For dental offices organized as a corporation, LLC, or LLP, the business has also elected to be a professional firm and complies with the Minnesota Professional Firms Act (under Minnesota Statutes, Chapter 319B), including registration with the Minnesota Board of Dentistry.
• Business Succession and Retirement Issues:
1. Owners have an adequate “buy-sell” agreement, disability plan, and other similar measures to resolve “unexpected” difficulties/differences.
2. Dental professionals have an adequate retirement plan and estate plan.
3. Dental offices have a business succession plan, for example, to transition to new ownership, to preserve and cash out the owners’ equity, and to meet any other legal requirements related to such a transition.

Although the above “Legal Wellness Checklist” should be a helpful tool, please maintain reasonable expectations. No dental professional is completely immune from legal difficulties, and no checklist can adequately identify every legal issue that a dentist or a dental practice might face. Moreover, like most tools, the “Legal Wellness Checklist” is helpful only if used appropriately. As noted above, the checklist is not a substitute for professional advice. The application of law very much depends on specific facts.

Moreover, legal issues are not necessarily apparent based solely on a checklist or other summary of Minnesota law, especially when reviewed by a non-lawyer. A person should consult with competent legal counsel to completely and adequately identify any legal issues, even if the non-lawyer’s impression is that the issue is adequately addressed based on the “Legal Wellness Checklist.” Legal counsel would review individual circumstances to confirm the dental professional’s impression, identify any other issues of concern (including those not addressed by the checklist), and determine how to assist and advise the dental professional regarding the identified legal issues.

2008 Minnesota Dental
“Legal Wellness Checklist” was created by:

Michael J. Weber
Weber Law Office
2801 Hennepin Ave. S., Suite 200
Minneapolis, MN 55408
www.weber-law.com
(612) 296-8080