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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