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Delegation of Duties in Orthodontic Practice Dr. Donald E. Machen, Hollie A. Bernstein Machen, Esq and Michael Cohen

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One of our most frequently asked questions involves ethically appropriate, dental-board compliant and legal delegation of duties for orthodontic assistants. There are several reasons for this continual interest including, but not limited to, a need and desire to comply with all rules and regulations of the respective jurisdiction and an overriding desire to provide optimal quality care.

In considering this question, it is necessary to address the various categories of dental/orthodontic assistants, specifically EFDAs (expanded function dental assistants), licensed/certified dental/orthodontic assistants and unlicensed dental/orthodontic assistants. Included as a subset of the delegation of appropriate orthodontic duties is the need for complete and thorough assistant training, continual re-training and continuing education. Although this aspect of delegation seems obvious, in many practices this is not a priority. It needs to be done on a regular basis with objective guidelines, but it is not done at all in some orthodontic practices.

Although the number of dental board actions and/or professional negligence lawsuits is not large, each case is significant to the patient, the assistant involved, the orthodontist and all others involved. Two important cases will be discussed later in this article. Care must be taken to know the rules and regulations in your jurisdiction. Periodically re-check delegation permissions and regularly provide training and educational updates. In addition, practitioners should follow the news from their dental board(s) about disciplinary/enforcement actions and be aware of the penalties that might be imposed, including fines, suspensions, supervision requirements, revocations and criminal prosecutions that may arise. One practitioner learned a severe lesson that included hefty fines, recovery of insurance proceeds, and a prison sentence of four years for exceeding the scope of permissible delegation and the consequent fraudulent billing for procedures performed by assistants that only he was permitted to do.

With this in mind, visit www.orthotown.com/delegation to see a table that will assist in making regular contact with each jurisdiction's dental board. Use this to confirm the proper extent of delegation and to whom the various regular tasks of orthodontic treatment may be delegated. When communicating with the various dental boards, precise and specific terminology must be verified since it is critical that the information received by the orthodontist reflects the exact nature of the delegable duty, as well as to whom the duty may be delegated. This cannot be overemphasized. Documentation is also critical. We suggest that a paper trail is created for all contacts with the dental board, even if the conversation was via telephone.

This is an ever-changing body of laws and regulation. As such, it is critical that an effort be made to maintain current information for your jurisdiction. While your local dental society is a good source of information, the ultimate responsibility to know the law is yours. Use this article as a starting point to initiate a discussion with your state dental board.

Prior to any delegation, it is recommended that the orthodontist complete a careful review and analysis of the dental practice act, the regulations, and the disciplinary actions database regarding delegation in general and the specific delegation being considered. In addition, contact with the dental board is suggested if the language of the statute, act or regulation of board statement is unclear or ambiguous. In other words, before delegating any orthodontic duty, the practitioner must verify that the delegation is ethical, permissible and legal.

No matter whether the reader delegates duties (and almost all orthodontic practitioners do), each practitioner must be familiar with the dental practice act of the jurisdiction(s) in which they practice, and should regularly go online to refresh their recollections or learn of any changes to the act and most particularly learn of delegation violations or infractions that were the subject of any disciplinary actions. This is important and should be done regularly. Dental Practice Acts are subject to change and refreshing recollections will prevent forgetting key aspects and likewise enable the orthodontic practitioner to comply with the specific rules and regulations in all aspects of the practice.

Some state dental boards are more responsive than others and some seem to desire some ambiguity in their rules and regulations for whatever reason. The orthodontist needs to be persistent in obtaining delegation information. Annually downloading and keeping a hard copy of the documents mentioned in this article is important since dental board actions may be taken years after the alleged delegation violation and it is important to maintain these documents since, once permitted, delegation may become a violation. Consider this as you do your insurance policies and tax documents. We recommend that you keep a binder (paper) or folder (electronic) with each year's copy in it.

This article is offered for procedural suggestions and is intended for informational and educational purposes. It is not to be intended as legal advice. Each reader should contact legal counsel familiar with the specific jurisdiction for specific information on ethical, dental-board compliant and legal delegation data, and to have specific questions answered. This is important since the scope of delegation in each jurisdiction can and does change regularly with additions as well as prohibitions. In addition, each practitioner is advised that follow-up and monitoring on a regular basis is the key to avoiding inappropriate and/or non-compliant or illegal delegation.

The definitions of the various levels of delegation used by the various dental boards include but are not limited to those that are listed and were obtained from the ADA's handbook of current policies. This entails definitions for personal, direct, indirect and general supervision. These definitions may be found on the ADA website. If you would like further information, the Web address is http://www.ada.org/sections/about/pdfs/doc_policies.pdf.

Many states are not specific with regard to exact information on the specific delegations that are permitted. When viewing some dental board websites, frequent reference is made to whatever is permitted in the Dental Practice Act. However, when the orthodontist reviews the act, the language may not be as helpful as hoped. Under such circumstances, the practitioner must be diligent in obtaining the necessary information through the methods described in this article.

Some important definitions are:

Personal supervision: A type of supervision in which the dentist is personally operating on a patient and authorizes the allied dental personnel to aid treatment by concurrently performing a supportive procedure.

Direct supervision: A type of supervision in which a dentist is in the dental office or treatment facility, personally diagnoses and treatment plans the condition to be treated, personally authorizes the procedures and remains in the dental office or treatment facility while the procedures are being performed by the allied dental personnel, and evaluates their performance before dismissal of the patient.

Indirect supervision: A type of supervision in which a dentist is in the dental office or treatment facility, has personally diagnosed and treatment planned the condition to be treated, authorizes the procedures, and remains in the dental office or treatment facility while the procedures are being performed by the allied dental personnel, and will evaluate the performance of the allied dental personnel.

General supervision: A type of supervision in which a dentist is not required to be in the dental office or treatment facility when procedures are provided, but has personally diagnosed and treatment planned the condition to be treated, has personally authorized the procedures, and will evaluate the performance of the allied dental personnel.

As mentioned, two cases that illustrate the potential catastrophic results of unethical, inappropriate and/or illegal delegation are summarized. As the reader will note, these are severe penalties including license suspension, revocation, fines and criminal prison sentences. The loss of income can be significant and permanent. The loss of liberty is noteworthy and should be a valuable insight into the seriousness to which delegation matters are taken.

Case Summary 1: Illegal orthodontic duty delegation to a dental assistant

The orthodontist routinely delegated debanding and debonding to unlicensed dental assistants. The Dental Practice Act of this jurisdiction specifically prohibited the delegation of any procedures that may have irreversible, or "irremediable" tasks. In this instance, a small enamel defect was created as the bonding material was separated from the tooth. The debonding process occurred over two appointments. During the first appointment, the dental assistant removed the molar bands and bicuspid brackets, during which time the orthodontist was present. Several days later, the anterior brackets were removed during which time the orthodontist was not present and when the enamel defect was alleged to have occurred.

The penalty imposed consisted of a six-month license suspension and a several thousand dollar fine to cover the board's expenses for administrative and hearing costs. The real economic loss resulted in the suspension from practice and the loss of the practice income, patient defection and ultimately the loss of practice vitality, including staff loss, negative parent comments, stigma toward the practitioner and practice reputation. This final cost was enormous.

Case Summary 2: Illegal delegation of procedures including endodontic filing

This case resulted in a state dental board license revocation and a federal criminal prosecution. The dentist impermissibly delegated the reaming and filing of teeth during endodontic treatment. The case was not initiated by patients, who were all very satisfied with the care but was as a result of a terminated assistant reporting several incidents of this delegation. The charges included fraud in billing since the dentist was attesting to the performing of procedures billed to insurers as being performed by him, since these procedures were not among duties permitted to be delegated under the jurisdiction's Dental Practice Act. Again please note that all procedures were completed to the standard of care and no patient complained or was harmed in any manner.

The dentist was sentenced to 48 months in federal prison and lost his dental license. The thriving practice that he had created over 20-plus years was lost and likely would never be able to resume practice.

These cases illustrate the importance to the patient, orthodontist, practice and staff of a careful and regular evaluation of ethically and legally permissible delegation of duties in the jurisdiction( s) in which the reader practices. In conjunction, it is suggested that a regular program of continuing education, including skills assessment, be implemented and updated, along with maintained documentation. The orthodontist might prefer to contact the dental board or this task can be delegated to legal counsel. However, it is important to document all conversations and keep a log so as to have something to rely on in the event that should be needed. This is a matter of great importance to all concerned and merely relying upon what is perceived as common knowledge, oral conversations, common practice among fellow orthodontists or discussions at meetings or informal groups is inadequate and might prove to be catastrophic. Take the time and incur the expense needed. Do not delegate the investigation and decision to your staff. This merits your involvement or the involvement of your legal counsel.

The table provides an overview to the various state dental boards' delegation information as well as links to contact each jurisdiction to begin the due diligence needed to learn the specific orthodontic duties that may be delegated in your jurisdiction. It is not meant as a definitive answer to any delegation question. Any and all delegation questions must be directed to the respective dental board of the jurisdiction(s) in which the reader practices.

With this background in mind, it is suggested, at a minimum, that practitioners read and periodically re-read their Dental Practice Act(s), regulations and disciplinary actions to verify the permissible delegations for bonding and debonding, archwire changes and retainer impressions in each jurisdiction in which they practice. Specifically, verify the functions for EFDA's, licensed/ certified dental assistants and unlicensed dental assistants. In the event that any ambiguity or questions exist as to permissible delegation, the dental board should be contacted to obtain further clarification. Be mindful to create a paper trail for your records. By so doing, you eliminate the possible catastrophic consequences that can occur from illegal or unethical delegation of duties.

Author Bios
Dr. Donald E. Machen is the recognized authority on risk management in orthodontic practice, having initiated the discipline in the mid-1980s. He developed, moderated and presented at the AAO's first national risk management telecast to more than 2,600 orthodontists. He has represented orthodontists, dental specialists, general dentists and physicians in malpractice lawsuits and other legal matters as a trial lawyer and is currently a trial court judge in Pennsylvania, having served for more than 14 years. He is a board certified orthodontist maintaining a part-time practice and is on the orthodontic faculty of Case Western University Dental School and The University of Pittsburgh School of Dental Medicine. He is also an adjunct professor of Law at Duquesne University School of Law where he teaches malpractice litigation. Dr. Machen was the editor of the Legal Aspects of Orthodontic Practice column in the AJO, writing a monthly column, and has authored columns in JCO and Ortho Tribune. He lectures extensively to orthodontic groups, both large and small, focusing on developing highly effective systems for eliminating lawsuits, optimizing patient care and increasing practice referrals. Dr. Machen is the author of Managing Risk in Orthodontic Practice and is managing director of Risk Management Consultants, LLC. He can be contacted at: drmachen@orthormc.com.

Hollie A. Bernstein Machen, Esq. - After graduating from the University of Pittsburgh School of Law, Hollie spent the early part of her legal career as a litigation associate and then partner of the Bernstein Law Firm, a multi-office firm specializing in creditors' rights. After leaving that firm to raise her three children, Daniel, Lindsey and Roxanne, she began focusing on legal research and writing as a judicial law clerk in Pennsylvania and has remained active in that endeavor for more than 13 years. Additionally, she spent more than five years counseling clients on financial issues as a wealth management advisor at PNC Bank and National City Bank, earning various designations in the financial services profession including that of Certified Retirement Planning Counselor. Presently, in addition to working with clients at Risk Management Consultants, she spends time teaching online legal research skills to attorneys and judges as a research specialist for Westlaw and acts as practice manager for Dr. Machen's part-time orthodontic practice.

Michael Cohen is a third-year dental student at Tufts University School of Dental Medicine in the Class of 2014 and would like to pursue an orthodontic residency. He conducted the research compiling the data regarding the contact information for each state, which can be found at Orthotown.com/delegation.
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