May 2020 Volume LV Number 3


Litch's Law Log

March 2020 Volume LV Number 2

Speaking of Safety 
In recognition of the AAPD® Safety Symposium in the fall of  2019, using that term broadly this column features some resources and recommendations to help with a variety of threats to a pediatric den- tal office. In this context safety is almost interchangeable for prudent legal risk management. In fact, a new buzzword in health care today is "enterprise risk management" (ERM): "an ongoing series of inter- related activities designed to identify, assess, manage, and monitor the risks facing an organization."1

In my column from the May 2019 PDT the following was noted: "In most situations it makes sense to hire an attorney to
defend and appeal against any negative audit findings. I would love to be able to provide a personal recommendation for a highly competent Medicaid audit provider defense attorney to any AAPD member needing such assistance. Unfortunately, this would be either herculean or impossible."2
Perhaps the degree of difficulty was somewhat over-stated. AAPD recently prepared a list of law firms (national and by state) that handle Medicaid audit provider defense.3  It’s not an exhaustive or exclusive list, as noted in the introductory disclaimer, and we certainly don’t have personal knowledge of each firm’s capabilities. However, at least it’s a starting point. The ADA also offers guidance on selecting a lawyer called (not surprisingly) A Dentist’s Guide to Selecting a Lawyer, which is available for free to ADA members in the Center for Professional Success ™ section of their website.4
Audit insurance is also an important consideration, as legal defense costs can quickly add up. As noted in the Treloar and Heisel column from the November, 2019 PDT entitled Eight Questions to Ask Your Malpractice Carrier:
"As a specialist, look for a company that offers additional coverages addressing your industry’s needs, such as Medicare/ Medicaid billing defense coverage, which will provide you with coverage if the government audits your practice with a formal records request. For example, a policy with MedPro Group5 includes limits for t.his coverage up to $25,000 per incident and $100,000 for total incidents in the policy period."6
Based on recent member experiences in Nebraska, Medicaid audits can impact a pediatric dentist whether you are working as a practice owner or partner, associate, or employee of a DSO.
Don’t neglect to inform your professional liability insurance car- rier immediately if you are facing an audit, or a state dental board complaint for that matter. For example, MedPro Group will assist in drafting a letter if fees are returned to a patient’s family.
Every practice should have an effective compliance plan. The ADA offers a model office compliance plan.7 In previous columns I’ve also recommended the October 2015 CMS resource Medicaid Compliance  and Your Dental Practice.8

In this day and age, you should definitely obtain coverage in this area and have a discussion with your insurance broker. Ken Thomalla of Treloar and Heisel (the AAPD’s insurance broker) notes the follow- ing:
"In addition to cyber coverage under the MedPro Group plan (professional liability insurance), office policies (business owners/commercial general liability insurance) purchased through the AAPD program have cyber protection built in as well. As an option for all insureds, Treloar and Heisel also offers a stand-alone cyber policy which provides higher limits for those wanting the extra protection."
This coverage becomes even more critical given the disturbing new trend of ransomware attacks on dental practices. Ransomware is a type of malware that denies access to a computer system or data (such as patient records) until a ransom is paid. Recent attacks have impacted a number of pediatric and general dentists in Colorado, Kansas, Louisiana, Nebraska, Nevada, and Wisconsin.9
1Robert L. Carroll, Gisele A. Norris, and Michael Zukerman. Basics of Enterprise Risk Management in Healthcare. Risk Management Handbook for Healthcare Organizations, Vol. 1: The Essentials, American Society for Healthcare Risk Management, (6th ed. 2011, Chapter 1).
2 3 4
5MedPro Group is the AAPD’s endorsed professional liability insurer.
6 For more information about this article contact Kenneth C. Thomalla, CPA, CLU ®, CFP ®, Chief  Operat-
ing Officer, Treloar and Heisel, at
7 8 9

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