Dental Practice Legal Update September, 2014 Volume 11 Issue 9

Dental Practice Legal Update is Orthodontist’s Suit On Strategies for Saving on published by Attorney Brian Hatch as a courtesy to dental ACA Employer Mandate Taxes With Employee practices in Massachusetts by: Goes to Appeals Court Benefit Plans Hatch Legal Group 8 North Main Street Florida orthodontist Dr. Larry As a small business owner and an employer, dentists often can take advantage Attleboro, MA 02703 Kawa expended significant hours attempt- ing to conform his practice to provisions of of compensation plans that not only supply Phone: (508)222-6400 the Affordable Care Act, and a delay of their employees valuable retirement savings hatchlegalgroup.com the employer mandate under the law by the plans, but save them money through provid- Obama administration until 2016 caused ing for their own retirement. The variety of him enough costs so that he filed a lawsuit plans available makes it difficult to find the for damages under an “unlawful taking” right type of strategy to meet the goals of both the employer and the employee. How- argument. The suit was dismissed by a Florida federal district court because of his ever, a brief description some of the possi- supposed lack of standing as an employer bilities can help you make the right decision. to challenge the action. However, since in a similar suit in Texas a court allowed an- Dentists are generally small em- other plaintiff standing to sue the admini- ployers with less than 100 employees, so stration under a separation of powers argu- some of the 401K plans and other Defined Attorney Brian Hatch, ment pitting the Obama administration’s Contribution and Defined Benefit plans that publisher of Dental powers versus those of Congress, the 11th work for larger companies may not be the Practice Legal Update, Circuit Court of Appeals decided to hear best fit for the smaller practice. The imple- has represented dental oral arguments on the case. mentation and reporting requirements along with all the federal rules and regulations gov- practices in complex The decision by the court to hear erning the various types of plans can be a litigation, business, oral arguments came on the same day as a challenge for the smaller employer. employment and other U.S. House rules committee held a hearing legal matters. His on a proposed separation of powers law- There are a few types of defined suit, and thus the potential for the suit to contribution benefit plans that are specifi- book “Dental Practice reach the courts in that situation eventually cally designed to help the small employer Law Guide” is avail- anyway may have resulted in the Court’s establish savings accounts that will offer tax able at: agreement to accept arguments on Kawa’s savings in the near future, provide benefits case. Oral arguments should take place for the employer’s retirement, as well as al- hatchlegalgroup.com sometime in October. low for employee contributions for their own retirement accounts. To be able to offer Kawa claims that compliance employees an asset that some have not even costs caused by the uncertainty over when considered in the beginning of their work the mandate would take effect greatly dis- career that is in addition to the regular wages rupted his practice and required him to or salary can attract quality employees who spend significant hours and money meet- realize the value of an employer contribution ing with insurance agents and attorneys over his required response. (continued on page 2)

THIS PUBLICATION IS PROVIDED BY HATCH LEGAL GROUP, THE ONLY DENTAL PRACTICE SPECIALTY LAW FIRM IN MASSACHUSETTS Strategies for Saving on Taxes form of profit-sharing for an owner to accounts, or $14,500 a year if they are at offer it as a compensation benefit for a least 50 years old. The part of the plans that with Employee Benefit Plans make it attractive to both employer and em- (continued) number of the partners in the company. The costs to implement an SEP are mini- ployee is that the employer can offer a matching contribution of up to 3% of the to workplace benefits. Just the fact mal, as are any ongoing fees to keep it going. There is no required annual employee’s salary. The employer and em- that the small business owner can ployee pay no payroll taxes or income taxes call himself or herself an employer funding requirement for SEPs. The SEP is the plan that allows owners the largest on these contributions, so it is compensation may allow for owner to realize re- without that big chunk going to the IRS and tirement benefits and tax savings deduction for their own retirement strat- egy. other tax collectors, a situation all of us en- that a savings account cannot joy! achieve on its own. SIMPLE IRAs are another One plan that is popular for way for small employers to take advan- Even though it is actually very easy those business owners who have a tage of the tax benefits of ongoing con- and involves minimal costs to set up the small number or no employees is a tributions to retirement plans as de- plans oriented towards tax savings for small SEP IRA. The owner can contribute ductible expenses. Contributions are employers specifically, it is surprising that up to 25% of the owner-employee’s not all employer funded but allow so few small businesses actually take advan- salary or a maximum of $52,000 in matching funds to be made available to tage of employee retirement accounts. In 2014. The money contributed is a employees who make their own contri- fact, the SBA has determined that almost direct deduction from an annual tax butions to individual retirement ac- 72% of employees of small companies have return for the owner. It is self counts. The plans are for those em- no retirement plans available at all. funded by employers so that they ployers with less than 100 employees contribute equally to all employees, and have no reporting requirements or Source: Liam Timmons, Timmons Wealth though employees can also contrib- maintenance fees. Employees can save Management, Attleboro, MA ute to their SEP. It can also be a up to $12,000 a year through these

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Dutch Dentist Sought for revealed. Dr. James Cauley had previously of complaints, suits and other actions overdosed on fentanyl and had been using taken against him by former patients. Mutilation of Patients Caught nitrous oxide intended for patients. The malpractice he had been accused of in- Cook ran across rules used by A Dutch dentist on the run cluded the negligent placement of over 12 from authorities in France and sought the California Dental Board which made crowns and intentionally proposing unnec- complaints against dentists nearly impos- for mutilating a number of his patients essary treatment on healthy teeth. Cauley has been arrested in New Brunswick, sible to find by a prospective patient was also accused of patient abandonment, searching the credentials of a dentist like Canada, according to local police and his employer, Coast Dental, was ac- there, and is being held by immigra- Tupac. Complaint files are not accessi- cused of not completing the treatment but ble by the public and dentists are not re- tion officials. Dr. Mark van Nierop keeping over $20,000 in patient payments had been a fugitive from justice in quired to notify patients that they have which did not appear in the practice book- been placed on probation by the Board. France since December of last year keeping. Cauley’s drug use was not admit- when he was accused of mutilating ted as evidence in the first part of the trial, In addition, in her article on Tu- patients and fraud after he supposedly which resulted in the jury verdict on the installed poorly place implants, left pac entitled “Dental Dangers” Cook out- dental malpractice against the practice. lines the complexities in the California parts of dental tools in patients’ gums, Cauley was dismissed from the case before and did extractions of healthy teeth. court system that make it difficult to ac- trial after settling with the patient, Haley Allegedly 120 patients were harmed cess court records of malpractice or other Buice, a 33 year old mother of four. suits against dentists. Nondisclosure during van Nierop’s procedures, and at least 60 of them suffered serious agreements signed by patients hampered California Malpractice Claims her discovery of the decades long abuse injuries. He is next subject to a quasi- judicial detention review hearing in Often Difficult to Access of patients during which Tupac continued Nova Scotia. to practice. New laws are now being A reporter researching a dental proposed to require greater disclosure by

$2.8 Million Awarded Patient malpractice case of a California dentist also dentists of their past disciplinary records. of Drug-Addicted Dentist came across such red tape and hidden facts about malpractice of other dentists that she Looking to Buy or Sell a wound up reporting on the defects in the Dental Practice? Call Hatch A patient who sued a dentist California dental board/court system that and the dental practice employing him Legal Group for legal and prevents the public from accessing informa- for malpractice was recently awarded other services for either tion about those cases. Rachel Cook, who $2.8 Million in a DeKalb County reported for the Bakersfield Californian, the buyer or the seller. 508 Georgia court, after the details of the was looking into the malpractice history of -222-6400, hatchlegal- practice’s hiring of the dentist despite Dr. Robert Tupac, whose poor dental treat- group.com positive drug tests for valium were ment was documented over three decades problems. Guernsey’s suit claims she University Clinic Faces Oregon Dentist Sued for suffered repeated panic attacks follow- Retaliation for Reporting Sleeping on the Job ing the visit and needed to seek pro- Harassment Charges fessional help. The complaint asks for A patient of Dr. Paul B. Kim $10,000 in damages for dental treat- A hygienist working at the is now starting a $200,000 lawsuit ment and counseling and $190,000 for Portland (Oregon) State University against him for allegedly sleeping emotional distress. Dental Clinic has filed a $1.3M law- around the same time as making deci- suit against the University for firing sions about the proper anesthetic to Delta Dental Gives Funds for her in retaliation for reporting sexual use during her dental treatment. Dental Equipment for harassment. Valarie Austin based her Melyn Guernsey said that the was Wellness Clinic claim on comments she said a dentist having a tooth extraction and was in In an effort to promote a at the clinic, Dr. Tuan Truong made pain when she overhead a receptionist wellness program conducted by the towards her that were sexually sugges- and dental assistant talking about Kim University of Arkansas for Medical tive as well as comments she said he sleeping at two different times during Sciences Delta Dental has donated made about the size of female pa- her treatment, once to tell him to $15,000 for dental equipment to en- tients’ breasts. Truong had been told “wake up” and announcing that his able student dentists and dental hy- as a result of a prior investigation into next patient had arrived, and the sec- gienists to perform dental treatment a possible violation of the University’s ond time, after taking her x-rays, say- such as simple fillings and extractions. consensual relationship policy that his ing “Nap time is over. Room 1 is The 12th Street Health and Wellness actions constituted “unprofessional ready for X-rays.” When the dentist Center in Little Rock, Arkansas had behavior.” Trong and Ausin had was preparing for the extraction, he previously done oral health screen- dated for about six months in 2011, was told that her blood pressure was ings. Now the additional dental ser- but Austin said he started harassing high, and supposedly told his assistant vices will be available to community her after they broke up. She said the to take it again in 15 minutes. During under the supervision of licensed den- clinic started the process to get her that 15 minutes Guernsey claims she tists. The Wellness Center was or- fired after she filed the complaint with heard the assistant say “Wake up. ganized by students in an effort to the clinic and also after she gave the Room 2 is ready.” Eventually when combine community service with on- Oregon Board of Dentistry names of she was administered an anesthetic the-job training for students. Equip- patients she thought had been billed she had a negative reaction to epi- ment purchased includes intraoral X- for services they never received or nephrine and had to be taken to the ray equipment, handpieces and a vari- double billed. local emergency room with breathing ety of other dental instruments. ************************************************************************************************************** New York AG Cracks Down New HIPAA Business Generic office employee on Unlicensed Dentists Associate Agreements Must be manuals, or no manual at all, in Effect as of September 22nd risks non-compliance with The New York Attorney state and federal regula- General’s Office has announced that it Under the new 2013 HIPAA tions, with resulting penal- is cracking down on unlicensed den- Omnibus legislation rules, by Septem- ties. Call 508-222-6400 or tists in the New York City area, begin- ber 22, 2014 new Business Associate ning with the arrests of four unli- Agreements must be in place instead of hatchlegalgroup.com censed individuals who were wit- old agreements signed before January ************************ nessed by undercover agents practic- 25, 2013. The new rules updated Busi- ing dentistry in Brooklyn. The Medi- ness Associate responsibilities so that The 2014 HIPAA Audits are caid Fraud and Control Unit (MFCU) now Business Associates have the spe- conducted an undercover operation to now being scheduled. Be cific responsibilities of obeying HIPAA prepared to meet the re- reveal that Konstantin Shtrambrand, rules in the same way as dentists or Ilya Zolotar, Sergey Tolokolnikov, other health providers do. quirements for new docu- and Hakob Gahnapetyan were posing mentation, training of com- as dentists performing dental work This deadline is important for pliance officers and staff, such as drilling patient’s teeth. All dentists to realize because enforcement four were charged with practicing and policies and procedures of the new HIPAA/HITECH regula- that have been put in place dentistry without a license, which is a tions is increasing rapidly, with fines of felony under New York State law car- up to $1.5 million which can be levied as of September, 2013. Call rying a penalty of up to 4 years of for violations. Dentists who do not 508-222-6400 or contact prison time. The MFCU is also under- have agreements with business associ- hatchlegalgroup.com for CE taking an investigation into the Defen- ates technically cannot transmit or dis- eligible training including dants’ employers, Dr. Grigory Shyk- close protected health information new HIPAA documents and nevksy and his son Dr. Jospeh Grigory (PHI) to these companies or they will Shyknevsky of J.S. Atlantic Dental, be considered to have committed a HI- a Privacy Officer Compliance P.C. PAA breach themselves. Guide©. Hatch Legal Group 8 North Main Street Suite 403 Attleboro, MA 02703

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