Texas Dentists: TSBDE Is Trying To Send You A “Poison Pen” Letter

By Guest Expert: Jeanine Lehman, Attorney

On May 9, 2014, the Texas State Board of Dental Examiners (Board) met, and proposed new Rule 108.15 on patient notifications for discontinuance of practice. Subsequently, after receiving public comment, the first version of the proposed rule was withdrawn in June…something which is extremely rare! On July 4, 2014, a new version of proposed Rule 108.15 was published for public comment. Proposed Rule 108.15 Notification of Discontinuance of Practice will cost Dentists significant money and work, if passed as proposed.

Fountain pen on corporate seal

Patient and Board Notifications

Except under the locum tenens exception (see below), the rule requires a letter notification to patients seen in the last two years, by a Dentist who is retiring, relocating his or her practice, terminating employment or otherwise leaving a practice. That letter needs to include the date of discontinuance of the practice, and a description of how patients can obtain copies of their records or arrange for the transfer of their Dental records to another Dentist, as provided in Board rule 108.8 relating to Records of Dentist. Additionally, the rule requires the Dentist to notify the Board within 30 days from the date when the Dentist is terminating practice, retiring or relocating of (a) who has ownership of the records, (b) how the records may be obtained, if no longer available to patients, and (c) the information required in Board rule 108.10 relating to notification of Change of Information.

UPDATE: This rule did not pass. The patient abandonment rule is still intact.

Methods of Notification

The rule has two tiers of requirements for the method of notifications. If the Dentist is notifying his or her patients at least 60 days in advance, notification must be by sending a letter via first-class mail. If notifying less than 60 days in advance, notification must be by sending a letter via certified mail or hand delivery. In all cases, the letter must be made part of the patient record.

Prohibition Against Interference

The rule has a prohibition against interference. The Dentist, Dental group, or other entity employing or engaging a departing Dentist under any type of contract must not withhold information from a departing Dentist, which is necessary for the required notifications. Similarly, other licensed Dentists remaining in the practice must not prevent the departing Dentist from providing the required notifications.

Voluntary Surrender or Revocation of Dentist’s License

Except under the locum tenens exception, Dentists who have voluntarily surrendered their licenses or have had their licenses revoked by the Board must provide patient notifications under the rule, within 30 days of the effective date of the voluntary surrender or revocation. Such Dentists must enter into a written transfer of records agreement as described in Board rule 108.8(e)(2) within 30 days of the effective date of the voluntary surrender or revocation.

Locum Tenens

For locum tenens positions, as defined in the rule, notifications by the departing Dentist are not required. “Locum tenens” is a position in which a Dentist is employed or contracted on a temporary or substitute basis to provide Dental services. A Dentist is not required to provide notices, under the rule, of his or her discontinuance of practice to patients treated pursuant to a locum tenens position, if the Dentist was treating such patients for a period of no longer than 6 months at that location.

Cost and Impact on Dentists

The threshold question is: Is this proposed rule necessary? With the continuing growing regulatory burden being imposed on Dentists and other health care professionals, the question needs to be asked about this rule and all regulatory requirements.

When the notification can be sent at least 60 days in advance, the notification must be sent by first class mail. First class mail postage currently costs $0.49 for a one ounce letter. If a Dentist has seen 1,500 to 5,000 patients in the prior two years, the postage cost would range from $735 to $2,450. The Dentist also will incur significant labor costs to prepare the letter, produce a mailing list, and complete the mailing. The Dental practice also has the cost of providing the data for the mailing list and adding the letter to each patient’s Dental record.

When the notification is sent less than 60 days in advance, the notification must be provided by certified mail or hand delivery. Hand delivery may often not be practical – leaving certified mail as the only option. The cost for each one ounce letter sent certified mail, with the green card returned is $6.49, and using electronic confirmation of delivery is $5.14. If a Dentist has “seen” 1,500 to 5,000 patients in the prior two years, the postage cost alone could range from about $9,735 to over $30,000!  The Dentist also will incur significant labor costs to prepare the letter, produce a mailing list, complete certified mail forms for each patient, and complete the mailing. The Dental practice also has the cost of providing the data for the mailing list and adding the letter to each patient’s Dental record. The requirement to use certified mail is unduly burdensome. This proposed rule could also upset a lot of patients, who neither want certified mail, nor want to take time off from work to go to the post office to pick up a certified letter.

Presumably, all of these steps would need to occur, even if the patient’s records are staying with the employing Dentist’s practice, if another Dentist has bought the practice and will be there to provide care, or if there is a move of the practice down the street by the same Dentist.

There are many situations when advance notice to patients of at least 60 days is not feasible. The employment agreements and independent contractor agreements of associate Dentists are often terminated with less than 60 days’ notice. Also, relocation of a Dental office sometimes occurs suddenly or with a date that is known less than 60 days in advance. Examples include: in the cases of fire, tornado, hurricane, or other calamity; or foreclosure by the Landlord’s bank resulting in the premature termination of the Dental office lease; or when there is build-out of a new office space and the completion date is uncertain. Termination of employee or independent contractor status may occur unexpectedly due to a Dentist’s illness, disability or child care responsibilities. Also, in Dental practice sales, confidentiality of the potential practice sale is customary and advance notice to patients could devastate the value of the practice. Instead, upon closing of the practice sale, patients are customarily informed of the sale and transition via a letter of introduction from the selling and purchasing Dentist. In all these situations, requiring certified mail notice is a heavy penalty.

The proposed rule does not allow alternative methods of notification. Some practices use email for appointment reminders and other patient communications. It would be reasonable to allow alternative methods of notification.

The rule covers a Dentist who has “seen” a patient. Therefore, potentially another Dentist in the practice could be the primary treating Dentist, but the Dentist who has “seen” a patient one time, even if there was no separate billing for that Dentist’s services or if the Dentist was acting merely as a consultant, may well be covered by the rule. Therefore, compliance with the rule may require a tracking mechanism for when a Dentist has “seen” a patient, and could cause substantial confusion to patients receiving notices from Dentists who are not their treating Dentists.

Written & Oral Comments

The full text of the proposed rule is in the July 4, 2014 issue of the Texas Register on pages 5034 and 5035 and can be obtained here.

Members of the public, including but not limited to Dentists and members of the Dental community, are strongly encouraged to submit comments on the proposed rule and to attend and speak at the August 8, 2014 Board meeting. Written comments on the proposed rule should be submitted to be received by Simone Salloum, Assistant General Counsel of the Board, 333 Guadalupe, Suite 3-800, Austin, TX 78732, fax (512) 463-7452, or at rulecomments@tsbde.texas.gov no later than close of business on August 2, 2014. In-person oral comments can be made at upcoming TSBDE meeting, currently scheduled for Friday, August 8, 2014 and held at 333 Guadalupe, Austin, TX 78732. Board meetings usually begin at either 8 or 8:30 AM. Comments are very helpful to the Board in its decision-making process. Regardless of your ability to attend, all comments received are given consideration and review by the Board, so speak NOW or be prepared to live with the consequences!

FOOTNOTE: No provisions have been made within the current proposal for letters which either are unsigned for or simply returned to the office as undeliverable for any reason. Which means, even though Dentists may have expended considerable time and money to be compliant, they could STILL be found in violation of this proposed rule!

Jeanine Lehman is an Austin, Texas Dental and health law attorney, with a state-wide law practice. She can be reached at (512) 918-3435 or via email at Jeanine@Jeanine.com and welcomes your feedback on this post, which is reprinted by permission and granted to print or forward this article.