Dental Law Today

Many dentists and dental practices offer financing arrangements as a way to help patients, especially the uninsured, pay for their care and treatment. For those who utilize third-party vendors for such financing, recently enacted amendments to the Illinois Dental Practice Act impose new disclosure and transparency obligations on dentists and practices and place limits on what staff can do and say in their interactions with patients regarding the subject. The amendments became effective January 1, 2025. With other states enacting or considering similar legislation regarding external patient financing for health care providers, these changes serve as a reminder to dentists in every jurisdiction about the importance of staying up to date on changes in their state’s laws and regulations. Here is what you need to know and do about these changes in order to ensure compliance once the calendar turns to the new year. No Establishing, Promoting, or Assisting With Third Party Financing A dentist, employee of a dentist, or agent of a dentist may not “arrange for, broker, or establish financing extended by a third party for a patient.” That term encompasses and prohibits submitting an application to a third-party creditor, lender, or creditor's intermediary for approval or rejection on behalf of a patient. It also prohibits dental practices from providing patients with software, links, or QR codes that have been customized with the practice’s branding. Practices can, however, provide patients with a third party’s marketing and advertising materials so long as they are not customized to the practice. Beyond providing or displaying generalized third-party advertising materials, dentists and staff cannot do much more in terms of helping a patient apply for or obtain financing. Anyone associated with a practice cannot do any of the following: Complete any portion of an application for financing extended by a third party for a patient or patient's guardian. Provide the patient or patient's guardian with an electronic device to apply for financing extended by a third party. Promote, advertise, or provide marketing or application materials for financing extended by a third party to a patient who has been administered or is under the influence of general anesthesia, conscious sedation, moderate sedation, or nitrous oxide; is being administered treatment; or is in a treatment area, including, but not limited to, an exam room, surgical room, or other area when medical treatment is administered, unless an area separated from the treatment area does not exist. Mandatory Disclosure When discussing or providing applications for financing extended by a third party, a dentist, employee of a dentist, or agent of a dentist must provide the following written notice in at least 14-point font: DENTAL SERVICES THIRD-PARTY FINANCING DISCLOSURE This is an application for a CREDIT CARD, LINE OF CREDIT, OR LOAN to help you finance or pay for your dental treatment. This credit card, line of credit, or loan IS NOT A PAYMENT PLAN WITH THE DENTIST'S OFFICE. It is a credit card, line of credit, or loan from a third-party financing company. Your dentist does not work for this company. Your dentist may not complete or submit an application for third-party financing on your behalf. You do not have to apply for a credit card, line of credit, or loan. You may pay your dentist for treatment in another manner. Your dentist's office may offer its own payment plan. You are encouraged to explore any public or private insurance options that may cover your dental treatment. The lender or creditor may offer a "promotional period" to pay back the credit or loan without interest. After any promotional period ends, you may be charged interest on portions of the balance that have already been paid. If you miss a payment or do not pay on time, you may have to pay a penalty and a higher interest rate. If you do not pay the money that you owe the creditor or lender, then your missed payments can appear on your credit report and could hurt your credit score. You could also be sued by the creditor or lender. If your dentist's office has completed or submitted an application for third-party financing on your behalf, you may file a complaint by contacting the Illinois Department of Financial and Professional Regulation at https://idfpr.illinois.gov/admin/dpr/dprcomplaint.html or by calling (312) 814-6910." Penalties for Non-Compliance A violation of these new rules and limitations is punishable by a fine of up to $500 for the first violation and a fine of up to $1,000 for each subsequent violation. IDFPR has the power to take additional disciplinary action as well. If you have any questions about these new requirements or third-party financing for dental services generally, please contact Jordan Uditsky at Grogan Hesse & Uditsky. We Focus on You So You Can Focus on Your Patients At Grogan Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.

Few decisions a dental practice owner makes are as impactful as who they hire as an associate dentist. Whether a freshly minted dental school graduate or a more seasoned lateral hire, the associate you bring on board will hold the well-being of your patients, as well as the reputation, culture, and financial trajectory of your practice, in their hands. Making an informed decision, and conducting the due diligence necessary to do so, is critical and will go a long way towards fostering a mutually productive professional relationship. There is a multitude of considerations that go into the associate dentist hiring decision matrix – technical expertise, skill sets that match your needs, demeanor and communication skills, cultural fit, and agreed compensation structure, among others. But all of these factors, as important as they are, are irrelevant if the candidate lacks the fundamental ability to practice dentistry in your state or has issues of concern in their record that cast doubt on their suitability for your practice. If you have a seemingly ideal associate dentist candidate in your sights and are ready to move forward with an offer, make sure you cover all of the following fundamental licensing, credentialing, and disciplinary bases before doing so. Verify Licensure In Your Jurisdiction: Confirm the associate holds a valid dental license in your state or is in the process of obtaining their license. Obtain a photocopy or digital copy of the state dental license and verify the license status and validity using your state dental board’s online system. Check Educational Background: Request transcripts or diplomas from accredited dental schools. Specializations: If the candidate claims additional certifications, specialization, or training, ensure they provide supporting documentation. DEA Certification: Ensure the new associate has a valid DEA certificate. Get a copy of the certificate and confirm the registration number and expiration date. Malpractice History: Inquire about past claims or lawsuits. Ask about the underlying allegations and how the matters were resolved. Malpractice Insurance: If the associate will be responsible for maintaining their own malpractice insurance coverage, obtain proof of their current coverage, and verify policy limits, policy number, the insurance provider’s contact information, and the policy renewal dates. Assess Clinical Skills and Competence: Ask the candidate to present cases they’ve handled, including treatment plans and outcomes, and consider having candidates perform a procedure or shadow your team to observe their techniques and patient interaction. Peer Recommendations: Speak to previous employers, mentors, or colleagues about the candidate’s skills and areas for improvement. Conduct a Thorough Background Check: Ensure the candidate has no criminal history or legal issues beyond malpractice claims that could jeopardize patient safety, their licensure status, or your practice's reputation. Employment History and Contractual Obligations: Verify the candidate’s employment history and inquire about their reasons for leaving previous positions. Also ask about any contractual restrictions on their ability to join your practice, such as non-competition or non-solicitation agreements. Understanding of Ethics and Compliance Obligations: Inquire as to their knowledge and appreciation of and commitment to fundamental ethical and legal compliance obligations. We Focus on You So You Can Focus on Your Patients As noted, the hiring and onboarding of a new associate dentist is a multifaceted, multistep endeavor. No matter how impressive a putative associate may seem and perhaps is, confirming that they possess the foundational requirements and attributes needed to contribute to your practice and care for your patients is indispensable. At Grogan Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.

There are many reasons why a dentist may want to sell their practice - retirement, relocation, a desire to step back from the responsibilities of ownership, or an offer too good to refuse. Whatever the motivation, one goal is always the same: maximizing the financial benefits of the transaction. Those benefits – today and far into the future - depend on many factors, but few have as much impact as how the Internal Revenue Service treats the gains you realize from the sale of your practice. How you structure the sale, the nature of the entity you’re selling, the specific assets involved in the sale, and any special considerations like earnouts or deferred payments will determine how much winds up in your pocket vs. how much you’ll be sending to Uncle Sam. Here are some fundamental tax considerations to understand if you are looking to sell your dental practice in 2025: What Type of Entity Are You Selling? As noted in the title of this post, how you structure the sale of your practice is as important as the nature and value of the practice you’re selling. However, the entity structure you chose when you formed your practice still has a significant impact on how you’ll be taxed when you walk away. If you organized your practice as a C corporation, all proceeds from the sale of the corporation’s assets will be taxed on the corporate level. This means these proceeds may be taxed twice: once at the corporate level and again when you distribute those monies to yourself. If, however, your practice is a regular partnership (such as a limited liability company or a limited liability partnership) or an S Corporation, you may pay tax on both ordinary and/or capital gains income on your personal income tax return, depending on the structure of the sale. Capital Gains v. Ordinary Income If you make a profit when you sell an asset, you make a capital gain. But not all such gains are subject to capital gains tax. Sometimes, the IRS taxes profits as ordinary income at the taxpayer’s individual rate. Since the current individual rate is around 37 percent, sellers would rather pay the currently lower capital gains rate (the maximum of which is 20%) to the extent possible. Notably, the capital gains tax only applies to profits on assets held for more than 12 months. Unless a dental practice goes from zero to 60 or acquisition to sale in less than a year, which is rarely the case, the sale will implicate the capital gains tax. Accordingly, structuring your deal to maximize the amounts taxed as capital gains vs. ordinary income is one of the most significant considerations in minimizing your tax liabilities. This depends, to a large degree, on how you allocate and treat the assets you are selling. Asset Allocation Most sales of dental practices are structured as asset sales, meaning the purchaser is acquiring specific assets of the practice rather than its stock. Dental practices are comprised of several different kinds of assets—equipment, supplies, real property, goodwill—and separate accounting and tax rules apply to each type of asset. Tangible Assets : These include equipment, furniture, office and medical supplies, and other physical assets. Typically, tangible assets are treated as depreciated property, so gains on the sale of these assets are usually subject to recapture rules, where depreciation deductions taken in prior years may be "recaptured" and taxed as ordinary income. Accounts Receivable : Any outstanding accounts receivable can be part of the sale. For cash-basis taxpayers (the most common for dental practices), accounts receivable are taxed as ordinary income since they represent payments for services already rendered but not yet received. Goodwill and Intangible Assets : The goodwill of your dental practice, which includes the value of your brand, client base, and reputation, is generally taxed at the capital gains rate. This is advantageous because the long-term capital gains rate is often lower than the ordinary income rate. Other intangible assets may also qualify for capital gains treatment, depending on how they are classified. If you have taken depreciation deductions on your practice’s equipment or real property, the IRS requires that depreciation be "recaptured" and taxed as ordinary income up to the amount of prior depreciation. While this applies to equipment and other depreciable assets, goodwill, and certain intangibles do not face depreciation recapture. Earnouts: Deferred Purchase Price Payment or Compensation? From the IRS’ perspective, how and when you receive payment for the sale of your practice will determine its tax treatment. If those payments come in the form of earnouts, the key issue is whether the IRS views each payment as a deferred purchase price payment or the payment of compensation. Earnout provisions are often included in practice sale agreements and provide for contingent additional payments from the buyer to the seller upon the practice meeting specified financial targets or other milestones in the future. Earnout payments are generally treated as part of a deferred purchase price so long as the seller is not performing services for the buyer and the practice after the consummation of the sale. The earnout payments may be treated as compensation income if the seller provides services for the buyer or target company after the acquisition or, in some cases, if the purchase agreement includes a non-competition provision. If the IRS treats earnout payments as deferred purchase price payments (for a non-corporate seller), they will be capital gains, which, as noted, are taxed at a much lower rate than ordinary income. However, if the IRS determines that the earnout constitutes compensation to the seller, the IRS will consider it ordinary income that can be subject to tax rates as high as 37 percent, along with employment taxes (such as Social Security and Medicare taxes). Accordingly, the sale agreement should specifically refer to earnout payments as part of the purchase price to support the treatment of such payments as capital gains rather than ordinary income. However, what you call the payments in the documentation is far from determinative, as the IRS will look beyond the language of the agreement to consider several substantive factors when deciding how earnout payments should be classified. This is where careful structuring and documentation can play an outcome-determinative role in how these substantial sums will be treated for tax purposes. You put a lot into your dental practice over the years. How much you take out and whether your sale will reap the benefits you anticipate depends on how well your professional team of attorneys, accounting professionals, and financial advisors do their jobs when crafting your transaction. That is one of many reasons why you should consult with an experienced dental practice sale and acquisition attorney to discuss and understand your options. We Focus on You So You Can Focus on Your Patients At Grogan Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices. This blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.

If you are considering selling your dental practice, you likely want the conclusion of the transaction to be precisely that – conclusive. That is, when the documents are signed and the money changes hands, you want to be able to walk away feeling that nothing will come back to bite you; that all potential claims and liabilities have been accounted for, resolved, or shifted to the purchaser. But if the sale of your practice includes an assignment of your office’s lease, that may be easier said than done. A lease assignment involves transferring the obligations and benefits of the lease from you (the assignor) to the purchaser of your practice (the assignee). There are many complexities to a lease assignment as part of a dental practice sale. Some of those issues may throw a wrench into the sale and prevent its smooth consummation. Others could lead to unwanted or unintended risks after the completion of the deal if not addressed with both the landlord and the lease assignee during the transaction. Here is what dental practice owners who lease rather than own their offices should be cognizant of when assigning their lease during the sale of their practice. What Does The Lease Say About Assignment? As with every other matter pertaining to the landlord-tenant relationship, your rights and limitations as to assignment are governed by the express provisions of the lease. Almost all commercial leases contain a clause that accounts for the possibility that the tenant will want or need to assign their lease to another party during the lease term. Some leases – hopefully not yours - explicitly prohibit assignment. However, it is far more common for a lease to allow for assignment so long as certain conditions are met. Those conditions usually involve obtaining the lessor’s consent to the assignment. How freely that consent will be given depends both on lease terms that may define how and why the landlord may approve or deny the proposed assignment as well as the finesse with which the tenant and their assignee approach the landlord during negotiations. Obtaining The Landlord’s Consent to Assignment If the lease requires your landlord’s approval for assignment, how your putative assignee handles this aspect of the process can make or break your practice sale. Since the purchaser will be using the space in the same manner and for the same purposes as your practice did, the landlord’s primary, if not exclusive, concern is ensuring that the new tenant will be able to meet all of its obligations under the lease. Since no obligation means more to the landlord than getting their rent payments, reassuring them that the lessee has the financial wherewithal to do so consistently and throughout the lease term is critical. To expedite this process, you should work with the purchaser to gather the information, documents, statements, business plans, and references that can provide a clear financial history and strong business case for the assignee’s assumption of the lease. Doing so transparently and affirmatively can help reassure the landlord and potentially smooth over any concerns they may have. During negotiations, the landlord may ask for changes to the lease or additional guarantees. For example, the landlord may require a personal guarantee from the assignee or request changes in rent rates or other lease terms. These negotiations are a normal part of the process, but they can lead to delays or complications if not handled properly. The Landlord Isn’t The Only One Who Cares About The Assignee’s Finances You have just as much interest in the purchaser’s ability to meet its lease obligations as your landlord does. Assigning a lease to a financially unstable buyer could lead to complications down the line, especially if you remain liable for breaches of the lease after the assignment. And there is a good chance that you will, in fact, still be on the hook for any failure of the purchaser to fulfill the lease terms. While you should attempt to negotiate for and obtain a release of liability from the landlord, they may not be amenable to providing you with one. In such a situation, you essentially become the purchaser’s surety and guarantor as to the lease, an undesirable arrangement, to say the least. There are a couple of ways you can protect yourself in the event that the landlord will not release you from liability. You could make the sale of your practice contingent on obtaining a release, but if you do so, you are essentially giving your landlord the ability to scuttle your exit plans. Alternatively, you can make sure that your sale agreement contains a strong indemnification provision such that you can recover from the purchaser any amounts you may have to pay to the landlord due to the purchaser’s breach of the lease, including any attorney’s fees you may incur. Timing and Closing the Transaction The timing of the lease assignment is also critical. The lease should be assigned at the time the practice sale is completed, but the process of obtaining landlord approval and negotiating lease terms can take several weeks or even months. Both the buyer and seller should plan for these delays and ensure that the sale agreement takes the lease assignment timeline into account. Finalizing the lease assignment at the same time as the practice sale ensures a smooth transition and avoids disruptions in operations and patient care. The lease should be legally assigned, and all required documents should be signed and executed before the sale is officially closed. To discuss the potential sale of your dental practice, including any issues related to an assignment of your lease, please contact Grogan Hesse & Uditsky today at (630) 833-5533 or contact us online to arrange for your free initial consultation. We focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.

In the legal profession, we are very careful with our words. We understand that specific terms have equally particular meanings, and that there are things we should say, things we must say, and things we can’t say, especially when we are advertising our services to the public. For example, even though I focus a large part of my practice on and have a lot of experience representing dentists and dental practices, I can’t say that I specialize or am an expert in that area of the law. That’s because, under the rules that govern my profession, lawyers can't claim to be experts or certified specialists in legal advertising unless they have been certified by a designated and accredited organization. The same general principle applies to the dental profession. Dentists and practices that offer specialty dental services must tread with caution when advertising those services so as not to run afoul of state regulations that set forth in great detail when and how dentists can hold themselves out to the public as a licensed “specialist” or “specializing” in a particular field of dentistry. Specialty License Required If Using Specialty-Implying Words In Advertising Section 1220.421 of the Illinois Administrative Code governs advertising for dentists generally and the advertising of specialty services in particular. The prime directive for dental advertising is to not say anything that is “fraudulent, deceptive, inherently misleading or proven to be misleading in practice.” While the Code allows a dentist or practice to include information in advertising “any specialty licenses held, Board certification, professional society memberships and any limitations or concentrations of practice,” it also prohibits them from advertising “professional services that the dentist is not licensed to render.” Even the mere implication that a dentist is a specialist, without using that term, can cross the line. More specifically, Section 1220.421(f) provides that “When words relating to specialty practice are used in an advertisement, the advertisement must not imply that the dentist offering those services is licensed as a specialist unless he holds a specialty license issued by the Division.” Unless a dentist is licensed in the corresponding dental specialty, they cannot use the following words or variations thereof in any advertising or communications with the public: Endodontist Pedodontist Pediatric Dentist Periodontist Prosthodontist Orthodontist Oral and Maxillofacial Radiologist Oral and Maxillofacial Surgeon Disclaimers Required If a dentist uses terms such as "Specialist," "Practice Limited To," or "Limited To Specialty Of," with the name of the branch of dentistry practiced as a specialty, (endodontics, periodontics (pediatric dentistry), periodontics, prosthodontics, orthodontics, oral and maxillofacial radiology, and oral and maxillofacial surgery), that serves as prima facie evidence that they are holding themself out to the public as a specialist. A general dentist who advertises, in any media, using words or phrases customarily used by a specialist, except those prohibited above, but who does not hold a specialty license, shall include in the advertisement a prominent disclaimer that they are licensed only as a general dentist. Additionally, any advertisements offering the availability of the recognized dental specialties listed above or offering the availability of some other "specialty" practice shall contain a prominent disclaimer in the form of a statement setting forth the specialties in which the dentist is licensed in Illinois and/or a statement that the dentist is licensed to practice as a general dentist in Illinois. Examples of language requiring the foregoing disclaimers include: Family dentistry Cosmetic dentistry Restorative dentistry Preventive dentistry Hospital dentistry Implant dentistry TMJ Cranio mandibular dentistry Finally, for practices with multiple dentists that offer both general dentistry and any licensed specialty, all advertising for the specialty shall include the name of the licensed dental specialists who perform the specialty services. The consequences of an advertising-related violation can be extremely serious and lead to disciplinary action, including the suspension or revocation of a dentist’s professional license. Accordingly, dentists should consult with experienced dental counsel regarding any proposed advertisements or other communications with the general public to ensure compliance with state advertising rules. Call Grogan, Hesse & Uditsky Today At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and we welcome the opportunity to work with you. If you have questions or concerns about your practice’s advertising, please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.

Every dental practice is sitting on a fortune. The patient information they electronically collect, maintain, store, and use is a potential gold mine for hackers, cybercriminals, and other technological bad actors who can sell and leverage that data for their own gain or nefarious ends. For these reasons, dentists and all other healthcare providers, facilities, and the vendors they work with are ripe and continuous targets for cyberattacks and data breaches. Such occurrences can quickly metastasize into a legal, financial, and reputational nightmare for dental practice owners. And dental practices and dental service organizations are waking up to these nightmares with increasing frequency. According to the Ponemon Institute , dental practices experienced a 45% increase in data breaches in the last two years, with the average cost of a healthcare data breach reaching $9.23 million. As we discussed in this earlier post , the HIPAA Security Rule imposes detailed and technical compliance obligations on dental practices regarding the protection of patients’ electronic personal health information (ePHI). But when a breach does occur, practice owners must take quick, decisive actions on several fronts to triage the situation and remediate the damage. This includes making required disclosures and providing notice of the breach as set forth in the HIPAA Breach Notification Rule . The Breach Notification Rule mandates that covered entities, including dental practices, notify affected individuals, the Secretary of the Department of Health and Human Services (HHS), and, in certain cases, the media of a breach of unsecured PHI. What Constitutes a Breach? For purposes of the Breach Notification Rule, a breach is defined as the acquisition, access, use, or disclosure of PHI in a manner not permitted under HIPAA, which compromises the security or privacy of the PHI. This does not include unintentional access by a workforce member, inadvertent disclosure by a person authorized to access PHI, or when the unauthorized person to whom the disclosure is made would not reasonably have been able to retain the information. PHI is considered unsecured if it is not rendered unusable, unreadable, or indecipherable to unauthorized individuals through the use of encryption or destruction. Breaches of secured PHI (i.e., encrypted data) do not require notification as set forth below. Risk Assessment and Notification Requirements After Breach Discovered Once a practice becomes aware of a potential data breach, it must conduct a risk assessment to determine if there is a low probability that the PHI has been compromised. Factors to consider in such an assessment include the nature and extent of the PHI involved, the unauthorized person who used or received the PHI, whether the PHI was actually acquired or viewed, and the extent to which the risk has been mitigated. Within 60 days after the discovery of a breach, a dental practice must provide notice to any affected patients that includes: A description of the breach The types of information involved The steps individuals should take to protect themselves What the practice is doing to investigate and mitigate the breach, and Contact information for further inquiries. Notice to HHS For breaches affecting more than 500 residents of a state or jurisdiction, practices must notify HHS as well as local media outlets of the breach. Specifically, the practice must notify HHS at the same time it provides notice to affected individuals. That notice must be given “without unreasonable delay” and in no case later than 60 calendar days after the discovery of a breach of security. For breaches involving fewer than 500 people, covered entities must notify HHS annually and no later than 60 calendar days following the end of the year. What Dentists Need To Do To Comply With The Breach Notification Rule While the Notification Rule’s obligations don’t kick in until after a breach, dental practices should take several steps before a breach happens to ensure compliance and minimize the damage and fallout: Develop and Implement Policies and Procedures: Dentists should establish written policies and procedures for managing PHI and addressing potential breaches. These should include processes for identifying, investigating, and responding to breaches, conducting risk assessments, and notifying affected individuals and the appropriate authorities. Regular Staff Training: All staff members should be trained on HIPAA regulations, including the Breach Notification Rule, and the office's specific policies and procedures for handling PHI. Regular training ensures that staff members are aware of their responsibilities and can recognize and report potential breaches. Implement Security Measures: As noted, dentists should implement administrative, physical, and technical safeguards to protect PHI as set forth in the HIPAA Security Rule. This includes using encryption for electronic PHI, securing physical records, controlling access to information, and using secure communication channels. Establish a Breach Response Team: Having a designated team responsible for managing breaches ensures a coordinated and effective response. This team should include individuals from different areas of the practice, such as IT, legal, and compliance. Maintain an Incident Response Plan: An incident response plan outlines the steps to take when a breach is suspected or detected. It should include procedures for containment, investigation, risk assessment, notification, and mitigation. Compliance with the Breach Notification Rule is just one of many actions dental practices must take in the unfortunate event of a data breach. In our next post, we will discuss several other aspects of data breach response and mediation, all of which are crucial to protecting practices and patients alike. HIPAA Breach Notification Questions? Call Grogan, Hesse & Uditsky Today At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and we welcome the opportunity to work with you. If you have questions or concerns about your practice’s compliance with the HIPAA Breach Notification Rule, please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.

In theory, the vast majority of existing and future non-competition agreements should become void and unenforceable as of September 4, 2024. That is the scheduled effective date for the Final Rule approved by the U.S. Federal Trade Commission (FTC) on April 23, 2024, which effectively bans all non-competes, except those for “senior executives” or ones related to the sale of a business. (Click here for our detailed discussion of the ban). In reality, however, pending litigation, including a recently issued order enjoining enforcement of the Final Rule, has cast serious doubt on the ban’s fate. Several lawsuits challenging the Final Rule’s legality were filed within hours of the FTC’s approval. In one of those cases, Ryan, LLC v. Federal Trade Commission , a federal judge in Texas issued a preliminary injunction on July 3, 2024 that held that the FTC likely lacked the legal authority to prohibit non-competes. Judge Ada Brown of the U.S. District Court for the Northern District of Texas found that: “…the text, structure, and history of the FTC Act reveal that the FTC lacks substantive rulemaking authority with respect to unfair methods of competition under Section 6(g). The Court GRANTS the motion for preliminary injunction and postpones the effective date of the Rule as applied to the Plaintiffs. While this order is preliminary, the Court intends to rule on the ultimate merits of this action on or before August 30, 2024.” As the order notes, the preliminary injunction only applies to the plaintiffs in that case, including the U.S. Chamber of Commerce. However, if the court reaches the same conclusion when it considers the underlying merits of the challenge to the ban, it could issue a nationwide injunction that would prevent it from going into effect on its September 4 effective date. As the judge notes, that decision could come down only a few days before that date. Other cases attacking the non-compete ban remain pending as well. Though the Final Rule’s ultimate fate remains clouded in uncertainty, it is still set to go into effect in September until and unless a court says otherwise. Accordingly, dental practice owners who rely on non-competition provisions to protect their business interests should presume that any such provisions will no longer be valid. Owners should engage counsel to review non-compete language in their employment agreements and consider other options for protecting trade secrets and confidential information. If you have questions or concerns about the FTC’s Final Rule or the impact of this recent court ruling, please call Grogan Hesse & Uditsky at (630) 833-5533 or contact us online to arrange for your free initial consultation.

All dentists, on an intellectual level at least, understand the moral, ethical, and legal necessity of obtaining informed consent from a patient before embarking on a course of treatment. Unfortunately, there is often a disconnect between principle and practice when it comes to informed consent. Part of the problem lay in a lack of consistency or the failure to establish and follow clear protocols when discussing a proposed procedure and securing a patient’s assent. Conversely and somewhat contradictorily, a failure to tailor informed consent efforts to a patient’s particular needs or limitations can lead to miscommunication and misunderstandings that leave the patient neither informed nor in a position to effectively consent. However, perhaps the biggest stumbling block for dental practitioners regarding informed consent is the term itself. It implies that there are only two aspects to this fundamental duty: informing the patient, and obtaining their consent. This is a gross oversimplification of what dentists must do to both satisfy their obligations and insulate themselves from malpractice claims based on a lack of informed consent. The reality is that informed consent is a multi-step process that involves conversation and documentation, education and evaluation, the patient and most of all, patience. Specifically, informed consent encompasses five separate and equally important components: Disclosure Comprehension Voluntariness Competence Consent Disclosure The first step in informed consent is disclosure, where the dental professional provides the patient with all relevant information about the proposed treatment. This information should be comprehensive and include the nature of the procedure, its purpose, the expected benefits, potential risks, and possible complications. Additionally, the dentist should discuss alternative treatment options – including no treatment whatsoever – as well as the likely consequences of each course of action. For example, if a patient needs a root canal, the dentist should explain what the procedure involves, why they believe it is necessary and appropriate, the expected outcome, and the risks, such as infection or failure to remedy the underlying issue. The dentist should then present root canal alternatives, such as extraction or antibiotic treatment, along with their respective pros and cons. Comprehension The most detailed and thorough explanation of a treatment, alternatives, and potential outcomes is as good as spouting incomprehensible jibberish if the patient does not understand what the dentist is telling them. And that lack of understanding can negate the existence of informed consent. Comprehension means that the patient understands the information well enough to make an informed decision. This can be challenging, as dental procedures often involve complex medical terminology and concepts that may be unfamiliar to patients. It is a challenge that we in the legal profession are familiar with. We frequently must discuss complicated or opaque legal issues with our clients. Doing so in “legalese” or using gratuitous Latin phrases that sound impressive but mean nothing to most people does little to inform our clients or make them comfortable with their representation. That is why I aspire to “accessible expertise” when speaking with clients about their matters. For dentists, “accessible expertise” means using plain language and/or visual aids and repeating information as necessary. They should also encourage questions and provide clear, direct answers. Assessing comprehension might involve asking the patient to repeat the information in their own words or to explain their understanding of the treatment plan and its implications. Special attention must also be paid to the language capabilities of the patient. If a patient has limited English language proficiency, the dentist must take steps to ensure that they receive accurate oral or written translations of the information being provided. Voluntariness Informed consent must be given voluntarily, free from coercion, manipulation, or undue influence. This means the patient’s decision to accept or decline treatment must be made independently, without pressure from the dentist, staff, or family members. Voluntariness is a critical aspect of respecting patient autonomy and ensuring that their choices reflect their own values and preferences. For instance, a dentist should avoid using scare tactics to persuade a patient to undergo a particular procedure. Instead, they should provide balanced information and support the patient in making a decision that aligns with their own health goals and personal circumstances. Competence Competence refers to the patient’s ability to understand the information provided and make a rational decision based on that understanding. This element is particularly important when dealing with vulnerable populations, such as minors, elderly patients, or those with cognitive impairments. Competence is assessed by evaluating the patient’s ability to comprehend the nature and consequences of the proposed treatment and reason and deliberate about their choices. For patients who are deemed incompetent, such as young children or individuals with severe cognitive impairments, the dentist must obtain informed consent from a legally authorized representative, such as a parent, guardian, or legal custodian. In such cases, the representative’s decision should reflect the best interests of the patient. Consent The final step in the informed consent journey is obtaining the actual consent from the patient. This consent can be given verbally, in writing, or through implied actions, depending on the nature of the procedure and the circumstances. Written consent is typically required for more invasive or risky procedures, while verbal or implied consent might suffice for routine or minor treatments. When obtaining written consent, dentists should use a form that is clear, comprehensive, and devoid of unnecessary complexity. It should summarize all the information provided and include a statement confirming that the patient has had the opportunity to ask questions and that their questions have been answered to their satisfaction. The patient (or their representative) should sign and date the form, and the dentist should also sign it as a witness to the consent process. Practical Implementation Of Informed Consent Protocols Satisfying all of the conditions necessary to ensure informed consent, as essential as it is, can tax a dentist’s schedule and patience. To make this process as efficient as it is effective, consider adopting some or all of the following practices and protocols: Have Educational Materials At The Ready : Maintain a library of brochures, pamphlets, or links to videos that explain common dental procedures, their benefits, risks, and alternatives. These materials can serve as a foundation for further discussion and help reinforce and increase comprehension of verbal explanations. Interactive Communication : Engage in two-way communication with patients. Encourage them to ask questions and express their concerns. Use open-ended questions to gauge their understanding and clarify any misconceptions. Maintain Meticulous Documentation : Maintain thorough records of the informed consent process. Document the information provided, the patient’s questions and responses, and the consent given. This documentation is essential for legal protection and continuity of care. Use a Tailored Approach : Adapt the informed consent process to the individual needs of each patient. Consider factors such as age, language proficiency, cultural background, and cognitive abilities. Use interpreters or translation services when necessary to ensure comprehension. Train and Educate Staff : Ensure that all dental staff are trained in the principles and practices of informed consent. Regular training sessions can help staff stay updated on best practices and legal requirements. Allocate Sufficient Time : Schedule adequate time for patient consultations to ensure that informed consent discussions are not rushed. If you have questions or concerns about informed consent and would like to discuss them (in clear, plain language), please contact Jordan Uditsky at Grogan, Hesse & Uditsky, P.C. We focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.

Because they possess a treasure trove of personal, financial, and health information about hundreds or thousands of patients, physicians, dentists, and other healthcare practices and facilities are the frequent targets of hackers and cyberattacks. That threat has not diminished, and in a May 6, 2024 notice to the American Dental Association (ADA) and the American Association of Oral and Maxillofacial Surgeons (AAOMS), the Federal Bureau of Investigation (FBI) warned of a credible, active cybersecurity threat to the practices of oral and maxillofacial surgeons. While this current threat is focused on oral and maxillofacial surgeons, the FBI has expressed concern that the practices of general dentists and other specialists could also eventually be targeted. According to the ADA, the FBI suspects that the group behind the cyberattacks may be shifting tactics to oral and maxillofacial surgery practices after targeting plastic surgeons last year. Accordingly, all dental practices and practitioners need to be on high alert against such attacks, which focus on “social engineering scams” — such as phishing (email), SMSishing (through text or instant messaging apps), and vishing (using phone calls and voicemail) — to gain access to sensitive personal data such as electronic protected health information. In particular, the FBI warns of “spear phishing,” which refers to a phishing email that appears to be from a trusted contact. Through these scams, the FBI says, “threat actors try to convince people to reveal sensitive information, or to click on a link, open an attachment or visit a website that causes malware to be deployed. This malware can lead to ransomware, which blocks system and/or file access until money is paid.” The FBI provided an example of such a scam: A threat actor poses as a new patient or says they want to become a patient at the practice to obtain new patient forms online. Once the forms are received, the threat actor will then contact the practice to report they are having trouble submitting them online and ask if they can scan the forms and email them instead. The threat actor then emails the “forms” as an attachment. When the attachment is opened, malware is deployed through a phishing scheme. The FBI requests dental practices that experience any fraudulent or suspicious activities to report them to the FBI Internet Crime Complaint Center at ic3.gov . Precautions Dental Practices Can Take To Protect Against Phishing and Other Cyberattacks The Cybersecurity & Infrastructure Security Agency (CISA) recommends four vital ways to protect your practice from cyberthreats: Teach your team to recognize and avoid phishing Require strong passwords Require multi-factor authentication Update all business software Additionally, practices should have policies and protocols in place to immediately respond to and remediate any data breaches that result from a phishing scam or other cyberattack. The following resources are also available to support dental professionals: A CISA.gov toolkit aids healthcare practices in building cybersecurity foundations and implementing more advanced, complex tools to stay secure and ahead of current threats. The U.S. Department of Health and Human Services’ Knowledge on Demand resource offers five free cybersecurity trainings that align with the top five threats named in HHS’ Health Industry Cybersecurity Practices. HHS also provides information on how the HIPAA security rule can help defend against cyberattacks . The Office of the National Coordinator for Health Information Technology’s Security Risk Assessment Tool , a resource designed to help medium and small providers conduct a security risk assessment as required by the Health Insurance Portability and Accountability Act. The U.S. Department of Health and Human Services Office of Information Security and Health Sector Cybersecurity Coordination Center’s “ Artificial Intelligence, Cybersecurity and the Health Sector ” guide shares how healthcare entities help protect against AI-enhanced cyberthreats. Additional resources can be found at ADA.org/riskmanagement Call Grogan, Hesse & Uditsky Today At Grogan, Hesse & Uditsky, P.C., we focus a substantial part of our practice on providing exceptional legal services for dentists and dental practices, as well as orthodontists, periodontists, endodontists, pediatric dentists, and oral surgeons. We bring unique insights and deep commitment to protecting the interests of dental professionals and their practices and welcome the opportunity to work with you. If you have questions or concerns about your practice’s compliance with HIPAA, please call us at (630) 833-5533 or contact us online to arrange for your free initial consultation. Jordan Uditsky, an accomplished businessman and seasoned attorney, combines his experience as a legal counselor and successful entrepreneur to advise dentists and other business owners in the Chicago area. Jordan grew up in a dental family, with his father, grandfather, and sister each owning their own dental practices, and this blend of legal, business, and personal experience provides Jordan with unique insight into his clients’ needs, concerns, and goals.