The Risks of Bending The Dental Sleep Rule
Every health and dental discipline and every health and dental organization develops protocols to guide staff and providers. Yet there are times when they seem to hinder the ability to offer the best care to patients. What does the doctor/dentist do on these occasions? In many cases, health and dental providers may choose to bend the rules.
A common example may be a scenario wherein the dentist treating obstructive sleep apnea chooses to ignore insurance company polices prohibiting the dentist’s involvement in the diagnostic process(es). A dentist may decide that providing the testing equipment to the patient will assist in the patient’s flow thru the sleep medicine process. Depending on the model, this scenario may also produce some bit of revenue for the dentist.
This case involves a few levels of rule-bending in the “interest of patient care”. And, in many cases, the practice may even become part of a practice’s routine as a result of the provider engaging an outside entity on a contractual situation. But most legal experts agree that bending these rules— even with the best of intentions—is risky business.
WHEN SUBVERSION WORKS
Health and dental providers bend the rules for a number of reasons. In some cases, it’s because they’re unfamiliar with the rules, policies or regulations that govern their practice. Or they may believe that their professional judgment overrides any policies or procedures in place.
People don’t go to work intending to break the rules…rule-bending is a learned behavior that often becomes culturally acceptable. These situations occur when health and dental providers act responsibly by putting the patient’s best interest foremost—but at the same time act subversively by stepping outside the guidelines of the scope their practice.
Responsible subversion may help explain why rule bending is tolerated within various health and dental disciplines. As providers try to assimilate into a new service, they learn how to handle certain situations, taking into account how their co-workers and individuals in authority will react. They learn that some things work and some things don’t.
Once providers have bent the rules and had a favorable outcome and response from patients, perhaps have been paid through insurance, they are likely to be tempted to continue the practice(s). If left unquestioned, the rule-bending action then tacitly becomes acceptable practice in the practice.
THE TROUBLE WITH RULE-BENDING
Bending the rules is a slippery slope. Once you start bending a rule, then you start bending it a little harder and a little harder and a little harder.
In fact, bending the rules even once can land you in trouble. Take the case of the dentist who decides to sidestep testing protocols with all patients. Eager to promote their sleep medicine practice, the dentist decides it’s time to perform or participate in testing all patients. During a random audit, the insurance company - or even worse, Medicare - discovers that the dentist has had some role in the diagnostic process and all previously treated patients now undergo audit. The potential result is the payers’ requesting refund of all monies paid to the dentist for sleep medicine treatment(s).
There are additional ramifications for such practices. Regulatory agencies look at certain things to determine scope of practice and can conclude that these practices fall outside of the licensure of the dentist. In fact, in a recent conversation with Awet Kidane, Program Director of the California Dental Board, "The dentist is prohibited from participating in any way with the diagnostic process of a medical treatment. For sleep apnea, the testing device can not even pass through the dentist's office". The dentist even as much as providing the patient with the sleep testing equipment falls outside of the scope of California dental licensure.
It doesn’t matter if a patient is harmed or not! In many states - California included - performing a task outside your scope of practice is grounds for disciplinary action by the regulatory agency. The result: You can be sanctioned, have limits placed on your ability to practice or have your license taken away. A report of the incident could result in criminal charges.
In addition to the legal and administrative actions that can be taken against the practice, bending the rules can adversely affect your relationship with a patient. A patient who becomes aware that a health or dental professional flouts the rules may lose trust in that provider. That distrust could ultimately cause a patient to become dissatisfied with his or her care, or even derail the patient’s progress—increasing your risk of being sued.
DEALING WITH GREY AREAS
While legal experts agree that rule-bending is inadvisable, they acknowledge that there are gray areas. For example, when a patient’s prescription has run out of refills, a pharmacist who is unable to reach a prescribing practitioner may decide to dispense enough blood pressure medication for the patient to take until the pharmacist can contact the prescriber. While that action could put the pharmacist at risk—he could be accused of practicing medicine without a license—in some cases, he might also have a duty to provide that medication.
HOW TO MANAGE YOUR RISK
Bending the rules is often just a Band-Aid for a bigger problem in the availability of options. Providers resort to bending the rules because they believe they have no other options. But they do.
If you have your own practice, you may not even be aware that you’re bending rules. It’s a good idea to have an outside organization conduct a periodic risk assessment to identify any risky behaviors you or your colleagues may have inadvertently adopted.
Of course, your ultimate safeguard is to be familiar with and make sure you thoroughly understand both the rules and regulations that govern your practice, and the policies and procedures in place. If you require guidance on your discipline’s code of ethics or standards of practice, you should seek the advice of a qualified consultant or attorney. Similarly, your organization’s risk manager can help you interpret—and adhere to guidelines and policies. The easiest measure of determining if a service/treatment falls within the scope of your licensure is to confirm if you can or can not be directly reimbursed by an insurance company or Medicare. If the answer is no, you likely are providing a service that may place your practice at risk! There are a number of resources which can help you determine how best to avoid liability.
Uncertain about the scope of your practice or ability to perform certain services? #weshouldtalk