Legal Updates for Your Dental Practice

Legal Updates forYour Dental Practice

June 7, 2016

Agenda

Avoiding Pitfalls in Lease Renewals

Employment Law for Professionals andSmall Business Owners

Staying Out of Trouble in Dentistry

AVOIDING PITFALLS IN LEASE RENEWALS

Carla M. Moynihan, Esq.

Setting the Stage

Location, Location, Location

– Building Type

– Visibility

– Signage

Timing is Everything:Business Planning 101

– Number and Type of Employees

– Office Size / Operatories

– Furnishings/Fixtures/Equipment

Relevant Lease Provisions

Initial Term (5 years v. 10 years)

Tenant or Landlord Defaults

Use Restrictions v. Exclusivity

Option to Extend Term

Option to Expand

Future Rent Determinations

Option to Purchase

Initial Term

5 years v. 10 years

Early Re-Negotiation

Find Leverage Points

– List All Tenant Needs

– Identify Any Landlord Needs

– Commonality

Tenant or Landlord Defaults

Tenant Defaults

– Number

– Type

Monetary

Non-Monetary

Landlord Defaults

– Past v. Existing

– Potential Leverage

Use Restrictions v. Exclusivity

Existing Use Restrictions

– Any lawful use

– Any dental use

– Only specified dental use(e.g., orthodontic)

Existing Use Exclusivity

– All dental uses

– Only specified dental uses

Time to Re-Negotiate?



– Tenant’s Election

10 year initial / 2 to 3 five year options

5 year initial / 1 to 2 five year options

– Procedure

Timing (count backwards)

– Number of months prior to expiration ofterm (e.g., 12 or 9)

Writing

– Follow notice provision in lease to Landlord /counsel

Option to Expand

Option to Expand thePremises

– Adjacent Unit(s)

– Relocation to Larger Space

– Procedure

Right of First Offer

Right of First Refusal

Response Time

Writing



– Established in Lease

– Annual Rent Increases (CPI v.Percentage)

– Fair Market Rent (100% v. 95% orless)

Landlord Initial Determination

Tenant Response

Third Party Appraiser(s)

Option to Purchase

Option to Purchase

– Premises

– Entire Property

– Procedure

Right of First Offer

Right of First Refusal

Response Time

Writing

Questions?

Agenda




EMPLOYMENT LAW FOR

PROFESSIONALS AND SMALL BUSINESS

OWNERS

Brian J. MacDonough, Esq.

Massachusetts Wage and Hour Law

The Basics

Regular Payment of “Wages,” Minimum Wage, MealBreaks, Earned Sick Time

Classification: Independent Contractor v. Employee– Three Part Test (free from control and direction, services

performed outside the usual course of business, engaged in anindependent trade, profession, or business)

Overtime (“White Collar” Exception – Executive,Administrative, Professional)

“Coverage” – The “specialist,” dental hygienist, officemanager, “back room”

Enforcement and Damages

Investigation and Enforcement Action by the AttorneyGeneral’s Office

Private Right of Action

Strict Liability

Mandatory Treble Damages and Attorneys’ Fees

Individual Liability

Common Issues/Mistakes Employers Make

Vacation Pay

Misclassification

Overtime (Record Keeping)

Deferral of Wages

Offset of Wages

Employee Handbooks – The Dos and Don’ts

Dos…

• Use your employee handbookto set expectations andprovide clarity, avoidpotential disputes and legalclaims

• Have clear policies thatcomply with the law (vacationpay, overtime, medical leave,sick leave, harassment claims)

• Review policies on a regularbasis

Don'ts…

• Try to address every possiblesituation

• Create affirmative obligations

• Assume one size fits all. Yourhandbook should complywith your individual statelaws and regulations

Discrimination / Retaliation Claims

Interplay between various leave / disability laws -ADA, 151B, FMLA, Paternal Leave, Sick Leave,ERISA and more …

Discrimination Claims – the “Pretext” analysis

Retaliation – responding to internal complaints

Questions?

Agenda




STAYING OUT OF TROUBLE IN DENTISTRY

Thomas W. Kirchofer, Esq.

What Gets Dentists Disciplined?

What to do if the Board of Registration Comes Calling?

Other Government Issues

Agenda

What Gets a Dentist Disciplined?

Dentistry is a heavily regulated industry

– The “Grounds for Discipline” are found in the Code ofMassachusetts Regulations

– 11 Separate Grounds for Discipline

– 234 CMR violations commonly lead to discipline, notnecessarily bad patient care


38 Disciplinary Decisions in 2015

Most common: 11 dentists disciplined

Spore testing problems, sterilization problems, andviolations of guidelines in “Recommended InfectionControl in Dental Health-Care Settings – 2003”, publishedby the CDC. 234 CMR 5.05

A couple dentists fought this – they had a vendor thatmonitored spore testing/sterilization and failed; thatdidn’t matter


Failing to renew a license

– Leads to a double whammy violation (failure torenew a license, and practicing without alicense)

13 disciplinary decisions(dentists and hygienists)


Failure to have an emergency protocol witha current emergency drug kit (234 CMR5.15)

Goes hand-in-hand with Local Anesthesiaviolations (234 CMR 6.15)

7 dentists


Naming and advertisingissues– Failure to put a dentist-owner’s name

on advertisement (234 CMR 5.18)

– Failing to post licenses/failure to havestaff wear nametags (234 CMR 5.04)

– “Every registered dentist shallexhibit his full name in plain readableletters in each office or room wherehis business is transacted” (G.L. ch.112 § 44)

How Do I Stay Out of Trouble With the Board?

Read the Rules. Know the Rules

Document, document, document

Numerous record-keeping rules, even beyond the patient record

Keep your patients happy!

What Do I Do if I Hear From the Board?

The Board may visit your practice “at any timewithout prior notice and conduct an inspection todetermine compliance with state law…” 234 CMR5.17

The Board may also investigate complaints

Don’t Panic!


Written complaint and response

Informal interview

The Board may establish a Complaint Committee with 2members (one must be dentist)

They may then schedule an investigative conference, andmust give notice of the nature of the complaint

What’s coming up if they find something wrong or get aComplaint?


What Can They Do to Me? (234 CMR 9.03)

Non-disciplinary actions:– Dismissal with Prejudice – where the conduct complained of does

not breach a rule, or there is no jurisdiction (e.g. a billing dispute)

– Dismissal With an Advisory Letter – an “official written noticeretained in the Board’s files delineating the Board’s concerns withthe licensee’s professional practice.” Not formal discipline.

– Stayed Probation – an agreement to practice under certain termsand conditions. Not formal discipline.

– Generally not published


What can they do to me? (continued)

Disciplinary Actions– Reprimand

– Probation

– Censure (a “severe reprimand”)

– Voluntary Surrender – licensee agrees to surrender license

– Suspension

– Stayed Suspension - (suspension does not activate pendingcompliance with agreed terms)

– Revocation

– These are published, will show up in a Google search


As a practical matter …

Most of the 2015 Disciplinary Decisions were agreements for probation orreprimand

– Two dentists fought to a hearing and got the same probation they wouldlikely have received on agreement

– One voluntary suspension based on a suspension in in Conn

– One “non-disciplinary agreement not to practice.” (No facts given but thedentist agreed to retire)

– One agreement to surrender – dentist was sentenced to prison on childpornography charge

– One revocation for a hygienist who ignored the proceedings

– One six-month suspension (dentist violated numerous rules)

– One indefinite suspension (dentist abused prescription authority; seemedto be writing prescriptions for himself/his wife)


If you get a complaint …

– Talk to your malpractice insurer

– Talk to a lawyer

– Don’t ignore it!

– Even if you think the complaint is nonsense…

The Rest of the Government

MassHealth

– They can demand an“overpayment” for payments inviolations of its own rules

– Often work in conjunction withthe State Auditor

– MassHealth has its own rules,independent of the Board’s

– MassHealth has creativeinterpretations of its rules

The Rest of the Government.

Other potential problems:

– False Claims Act and whistleblowercases – potentially serious financialpenalties

– Anti-Kickback Statute

– Possible criminal liability

– The Upshot: Be careful – and nottoo creative – in your billing

– Document, Document, Document

Questions?

Dental Practice Experience

Carla M. MoynihanReal Estate [email protected]

Brian J. MacDonoughEmployment [email protected]

Thomas W. [email protected]

Our dental practice team combines our expertise in real estate, employment, and litigation to provide a interdisciplinary approach to your legal needs. Our experience includes representing solo dentists and doctors to larger, multi-office practices.

Real Estate and Corporate

Our real estate team can provide advice related to all aspects of a commercial real estate transaction, including:

• Formation of corporate entities• Negotiating and drafting letters of intent• Office leases

• Purchase and sale agreements• Financing terms• Practice acquisition agreements

Employment

Our employment lawyers are able to provide guidance for professionals and small business owners including:

While we take a preventive approach to employment issues, should disputes rise, we have expe-rience representing both employers and employees before the MCAD and EEOC and in state and federal courts.

Litigation

Our litigation team assists dentists in managing their risk to avoid litigation, and represents clientswhen disputes arise. This can include matters before state and federal courts, and state and federaladministrative agencies, including the Board of Registration.

• Drafting employee handbooks• Wage and hour issues• Wrongful termination

• Discrimination• Retaliation• Contract negotiation and enforcement

Our Dental Practice Team

About Sherin and Lodgen LLP

An Experienced Team

With over 40 attorneys, we’re large enough to handle big, complicated problems while small enough to provide responsive, senior-level attention to every matter. We have chosen to focus on what we do best, attracting talented, experienced attorneys in the following practice areas:

• Acquisitions and Dispositions• Alternative Dispute Resolution• Bankruptcy and Creditor Rights• Business Litigation• Commercial Finance• Construction Law• Corporate / General Business• Corporate Real Estate• Employment Law• Environmental Law• Hospitality• Land Use Permit Advocacy• Leasing• Professional Fiduciary, Estate, and Probate

Litigation• Product Liability• Professional Malpractice• Real Estate Development• Real Estate Litigation• Solar Energy• Tax

A Nationally Recognized Firm

• The Firm has an AV rating from Martindale-Hubbell and is listed in Martindale-Hubbell’s Bar Register of Preeminent Lawyers

• Our Real Estate Department has been ranked both nationally and locally by U.S. News and World Report’s “Best Law Firms”

• Members of the Firm have been recognized for excellence in the areas of Real Estate, Commercial Litigation, Employment, and Bankruptcy/Restructuring by Chambers and Partners

• Nine of our partners have been selected for inclusion in The Best Lawyers in America

• Two of our partners are Fellows of the American College of Real Estate Lawyers, two are Fellows of the American College of Trial Lawyers and one is a Fellow of the American College of Employment Lawyers

A Global Reach

The firm is a member of Lexwork International®, a strategic alliance of more than 41 midsized law firms based in major cities in the United States, Canada, Latin America, and Europe, with additional offices in Asia.

Value Beyond Price

Our attorneys have provided intangible benefits to clients for many years, including:

• Frequent customized educational seminars

• Connecting clients through firm networking events

• Knowledge management in support of client operations

• Customized transactional forms

• Serving as short term in-house lawyers

• Serving as interviewers for in-house positions

• Providing conference rooms and facilities without charge

101 Federal Street Boston, MA 02110

10 Dorrance Street, 7th FloorProvidence, RI 02903

www.sherin.comT: 617.646.2000F: 617.646.2222

Legal Updates for Your Dental Practice

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Transcript of Legal Updates for Your Dental Practice