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Do I Need A Permit to Utilize Sedation Dentistry in Florida?

What is Sedation Dentistry?

Sedation Dentistry is a mild to moderate level of sedation used to assist dental patients with attaining a temporary insensitivity to pain while remaining conscious. Typically, this is used for lengthier procedures and is also found to be very beneficial for patients that suffer from anxiety about having dental work done.

What are the different types of Sedation Used?

There are a few different types of sedation that can be used for dental procedures. The kind of sedation used depends on the treatment or procedure at hand and the level of anxiety the patient suffers from. There are also varying factors such as the patient’s weight and medical history.

Oral Sedation: With oral sedation, a pill is administered about one hour before a procedure so it has time to take effect. Usually, patients will feel tired and dazed. This is considered “minimal sedation”. It is possible to fall asleep while under oral sedation but not common. At most, it would be a light sleep and the patient can be easily awakened. This type of sedation is ideal for patients with fear or anxiety. It will affect memory and motor skills and, accordingly, patients must be advised against driving themselves home.

Inhalation Sedation: This is typically known as “laughing gas”. Nitrous Oxide is administered through a mask or nosepiece. It is a gas and the dosage is controlled by the dentist and begins to take effect almost instantly (within 3 to 5 minutes). This method merely calms the patient to sit through the procedure and may provide mild pain relief. Oral injections can be provided simultaneously with nitrous oxide. Once finished, oxygen is passed through the mask or nosepiece and the nitrous oxide is flushed out of the system. This is also considered “minimal sedation”.

Intravenous Sedation: Sedative Medications are pumped into the veins of a patient and through the bloodstream. This requires the monitoring of blood pressure, oxygen levels, and heart rate and is the most intense form of sedation allowed to be used in a dental office. This is considered “moderate sedation”. Patients typically fall asleep and have no memory of the procedure afterwards. It is not recommended to operate a motor vehicle after intravenous sedation. Patients should be advised to not eat or drink for 6 hours before having intravenous sedation.

General anesthesia can be used in a hospital or ambulatory setting. It is an unconscious sedation, and an anesthesiologist must be present. This is not very common for a dental procedure and cannot be performed in dental office.

When is Sedation Used in Dentistry?

Sedation is usually offered to patients who have some sort of anxiety about a procedure. It is also offered to minimize the amount of pain felt during a procedure. For lengthier or more painful procedures such as root canals, it is always recommended.

Who Can Utilize Sedation Dentistry?

The Florida Board of Dentistry allows dentists to administer a small dose of oral sedation without having advanced training or permitting. A single dose of a medicine is allowed up to the maximum dosage per patient weight. Dentists are also allowed to supplement with nitrous oxide. This is considered “minimal sedation”. Formal advanced training in sedation is required to administer “moderate sedation”. This is done through an internship or an approved course. Dental professionals must complete 60 hours of didactic instruction on a minimum of 20 patients, and an inspection of the office must be performed including a demonstration of an emergency drill before any permit is issued with the Board of Dentistry. To administer “deep sedation” or general anesthesia, a dentist must complete a residency in General Anesthesia an receive a permit from the Board of Dentistry. Pediatric sedation requires a completely separate permit and training requirements.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services, please contact me using the contact information listed above.

 

All information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

Jones Health Law Podcast: Episode 5 – Healthy Smiles with Pediatric Dentist Marvin Abarca

In this episode we are discussing oral health with Pediatric Dentist, Marvin Abarca, D.D.S.! Dr. Abarca is a Board-Certified Florida licensed dentist and after several years of practicing recently opened his own dental clinic called Little Champions Pediatric Dentistry. During our discussion, Dr. Abarca discussed a range of topics including: (1) His training and finishing top of his class at an HBCU, the pros & cons of being a dentist, and what a typical day is like in the office for him; (2) differences between general and pediatric dentistry; (3) how to maintain oral health in kids and teenagers; (4) poor diet and lack of exercise and the effect it has on oral health; (5) affordability of dental care and the evolution of dentistry; (5) myths and misconceptions about pediatric dentistry; (6) substance abuse’s impact on oral health; and more.

Dr. Marvin Abarca can be reached at:
Phone: 305-285-8341
Web: www.LittleChampionsDental.com

Instagram: @LittleChampionsDental
Address: 1330 Coral Way, Suite 406, Miami, FL 33145

Can a Non-Dentist Own a Dental Practice in Florida?

At Jones Health Law, we receive a lot of inquiries from non-dentists who are looking to own and operate dental practices. Dental offices that are placed in high-traffic areas with good management, a diverse patient population, talented healthcare professionals, and robust marketing and advertising efforts can generate significant revenue even with declining reimbursement rates from insurers. According to the American Dental Association, the average gross billings per dentist for owner dentists in 2017 was $718,790 for a general practitioner and $1,058,630 for a specialist. With numbers like that you can see why a non-dentist might want to open a practice comprised of several dentists and dental hygienists. However, non-dentists must be very cautious about structuring their relationships with the dentists.

Under Florida law, no person other than a Florida licensed dentist, nor any entity other than a professional corporation or limited liability company composed of dentists may:

  1. Employ a dentist or dental hygienist in the operation of a dental office.
  2. Control the use of any dental equipment or material while such equipment or material is being used for the provision of dental services, whether those services are provided by a dentist, a dental hygienist, or a dental assistant.
  3. Direct, control, or interfere with a dentist’s clinical judgment.

As per statute, a non-dentist must not directly employ a dentist (i.e. W-2 employee) but they may work with the dentist as a 1099 independent contractor. The non-dentist cannot pay a dentist a salary or commission. The dentist may create their own wholly owned professional corporation while the non-dentist may provide their services through an LLC or other taxable organization. No employment contract may exist between the dentist and the operator but an independent contractor agreement may be necessary. Any dentist who is employed by a non-dentist may face disciplinary action.

The non-dentist who is providing the office space and equipment cannot control the use of dental equipment while such equipment or material is being used for the provision of dental services (emphasis added). This means that while the dentist is operating dental equipment the non-dentist cannot barge in and place restrictions on how the equipment or material is being used once a patient is being treated. For example, if a dentist is treating a patient and that treatment was expected to last 30 minutes but is now at the 45-minute mark the non-dentist cannot physically manipulate any dental equipment or tell the dentist that she has to finish within the next 5 minutes because another dentist needs to use it. However, a lease agreement can place general restrictions on the operation and use of the equipment that is being leased to the dentist.

Most importantly, a non-dentist cannot interfere with a dentist’s clinical judgment by instructing them on a course of treatment to provide to a patient. All clinical decisions must be left to the discretion of the dentist. The purpose of this law is to prevent non-dentists from influencing or interfering with the exercise of a dentist’s independent professional judgment.

The relationship between the non-dentist and dentist will be a network of lease, rental, marketing, practice management and administrative agreements. Any dental equipment lease agreement between a non-dentist and dentist must contain a provision stating that the dentist expressly maintains complete care, custody, and control of the equipment or practice. Further, an agreement is void if the non-dentist exercises control over the following:

  1. The selection of a course of treatment for a patient, the procedures or materials to be used as part of such course of treatment, and the manner in which such course of treatment is carried out by the dentist;
  2. The patient records of a dentist;
  3. Policies and decisions relating to pricing, credit, refunds, warranties, and advertising; and
  4. Decisions relating to office personnel and hours of practice.

A non-dentist may enter into a management contract with the dentist’s professional corporation to provide administrative services, which may include maintenance of patients’ medical records but the control and ownership of those records do not belong to the management company. The dentist must have unfettered access to those medical records as needed.

While a non-dentist cannot dictate the dentist’s hours of practice the medical office space lease agreement may include office access hours. For example, a lease agreement may grant the dentist access to the medical office space between the hours of 8 a.m. to 8 p.m. but the dentist would set their hours of practice between 9 a.m. to 3 p.m. Further, only the dentist has control over the hiring and termination of office licensed personnel such as dental associates, hygienists, technicians, and assistants.

A dentist may enter into an agreement with a non-dentist to receive “Practice Management Services.” The term “Practice management Services” is defined to include consultation or other activities or services offered by someone other than a Florida licensed dentist regarding one or more of the following types of products or services:

  1. The suitability of dental office space, furnishings and equipment;
  2. Staff necessary to operate a dental practice;
  3. Regulatory compliance expertise and services;
  4. Methods to increase productivity of a dental practice;
  5. Inventory and supplies required to operate a dental practice;
  6. Information systems designed to produce financial and operational data on the dental practice;
  7. Marketing plans or advertising to increase productivity of a dental practice;
  8. Site selection, relocation, design or physical layout of a dental practice, or
  9. Financial services such as accounting, bookkeeping, monitoring and payment of accounts receivable, payment of leases and subleases, payroll or benefits administration, billing and collection for patient services, payment of federal or state income tax, personal property or intangible taxes, administration of interest expense or indebtedness incurred to finance the operation of the dental practice, or malpractice insurance expenses.

Non-dentist management fee must be for fair market value and directly related to the goods and services provided without taking into account patient referrals. The dentists should not pay a percentage or portion of ifs gross or net profits to the non-dentist corporation.

Finally, dentists are prohibited from entering into non-compete agreements for the provision of dental services with any entity which is not itself a licensed dentist, or which is not licensed or otherwise permitted by law to provide the services which are the subject of the agreement not to compete.

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It should be noted that I am not your lawyer (unless you have presently retained my services through a retainer agreement). This post is not intended as legal advice, it is purely educational and informational, and no attorney-client relationship shall result after reading it. Please consult your own attorney for legal advice. If you do not have one and would like to retain my legal services please contact me using the contact information listed above.

All of the information and references made to laws, rules, regulations, and advisory opinions were accurate based on the law as it existed at this time, but laws are constantly evolving. Please contact me to be sure that the law which will govern your business is current. Thank you.

The Truth About the Corporate Practice of Medicine, Optometry, and Dentistry in Florida

Many states place restrictions on how medical doctors, optometrists, and dentists may organize themselves and conduct business within the state. Some states place significant restrictions on these healthcare providers while others are more lenient. Several states have enacted laws that prohibit certain healthcare providers from being employed by or controlled by any corporation or business, which is not entirely owned by other physicians. This is referred to as the prohibition of the “corporate practice of medicine.” Florida is unique in many ways, including its approach to regulating how these healthcare providers can organize themselves. Florida does not place the same corporate prohibitions on medical doctors as it does with dentists and optometrists.

Under Florida law, licensed healthcare professionals may organize themselves as professional service corporations (“P.A.”) or as professional limited liability companies (“PLC”). However, if a provider organizes her business as a P.A. or PLC she is only allowed to have other members who are in the same profession in her association. They may act as shareholders, officers, or directors of the corporation. For example, a P.A. may only be comprised of M.D.’s and is prohibited from allowing other healthcare providers such as, D.O.’s, dentists or optometrists from becoming shareholders of that P.A.

In Florida, Healthcare providers may also choose to organize themselves as a regular business corporation, with the “Inc.” designation, or as a Florida limited liability company.

Florida professional corporations are governed by the laws contained in Florida Statutes §§ 607, 620 and 621. Additionally, certain healthcare providers are regulated by one or more of the following statutes, Florida Statutes §§ 456 – 468, depending on the type of healthcare services that they provide and the licenses that they hold. Healthcare providers must ensure that they strictly comply with all applicable Florida Statutes and the Florida Administrative Code. Therefore, it is extremely important to hire a knowledgeable attorney that specializes in health law to ensure that your practice is complying with the applicable laws.

 

Corporate Practice of Medicine

As of April 2018, Florida does not have any laws that expressly prohibits the corporate practice of medicine. In other words, a physician (M.D. or D.O) may be employed by or contracted by non-physician owned corporations for the provision of healthcare services.

Throughout the years, several Declaratory Statements have been issued the Florida Department of Health indicating that there is no prohibition on the practice of medicine by physicians as corporate employees. In re Crow, Crow was a Florida licensed physician who sold his practice to a corporation and was then hired as an employee by that corporation and was provided a flat-fee salary for the provision of his services. Dr. Crow informed each patient of his relationship with the corporation but maintained exclusive control over the medical diagnosis and treatment of patients, and the corporation had no authority to exercise control over Dr. Crow’s professional judgment or the manner in which he rendered medical care to patients. The Board found that this arrangement was permissible so long as the fees generated for the corporation by professional services were actually provided by Dr. Crow and those under his direct supervision.

 

Corporate Practice of Optometry

Unlike the corporate practice of medicine, Florida expressly prohibits the corporate practice of optometry. Florida Statute §463.014 states that no corporation, lay person, organization or individual other than a licensed practitioner can engage in the practice of optometry by engaging the services, through paying a salary, commission, or other means of inducement to any Florida licensed optometrist.

The law does allow for a licensed practitioner, such as an optometrist, to associate with a multidisciplinary group of licensed healthcare professionals, the primary purpose of which is the diagnosis and treatment of the human body. Optometrists may also employ, or form partnerships or professional associations with Florida licensed practitioners or healthcare professionals, the primary purpose of which is the diagnosis and treatment of the human body.

 

Corporate Practice of Dentistry

The corporate practice of dentistry is prohibited under Florida law. Florida Statute §466.0285 states that no person other than a Florida licensed dentist or any entity other than a professional corporation or limited liability company composed of dentists may:

  1. Employ a dentist or dental hygienist in the operation of a dental office.

 

  1. Control the use of any dental equipment or material while such equipment or material is being used for the provision of dental services, whether those services are provided by a dentist, a dental hygienist, or dental assistant.

 

  1. Direct, control, or interfere with a dentist’s clinical judgment.

 

  1. Have a relationship with a dentist which would allow the non-dentist or entity to exercise control over:

 

  • The selection of a course of treatment for a patient, the procedures or materials to be used as part of such course of treatment, and the manner in which such course of treatment is carried out by the dentist;
  • The patient records of a dentist;
  • Policies and decisions relating to pricing, credit, refunds, warranties, and advertising; and
  • Decisions relating to office personnel and hours of practice.

 

Any lease agreement, rental agreement, or other arrangement between a non-dentist and a dentist whereby the non-dentist provides the dentist with dental equipment or dental materials must provide that the dentist maintains complete care, custody, and control of the equipment or practice.

 

Conclusion

Dentists must examine the administrative rules implemented by the Florida Board of Dentistry because these rules provide guidance in addition to the statutory law. The Florida Board of Optometry also has its own set of rules that could impact an optometrist’s relationship with others and how it conducts its business.

Whether you are considering creating a corporation for your healthcare practice to take advantage of tax benefits or to limit your exposure to certain types of liability you must determine whether the proposed structure for your corporation is compliant with applicable healthcare laws. For example, Florida law prohibits “fee-splitting” by healthcare professionals. Failure to do so could result in fines, penalties, closure of your office, or imprisonment.

 

 

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