Washington State Dental Association s 2015 Pacific Northwest Dental Conference. Presents. Risk Management Melissa Sanchez et al.

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1 Washington State Dental Association s 2015 Pacific Northwest Dental Conference Presents Risk Management Melissa Sanchez et al. Lecture Thursday, June 11, :00 p.m. 5:00 p.m. Friday, June 12, :00 p.m. 4:00 p.m. (repeat) Official Disclaimer Neither the content of a program nor the use of the specific products in courses should be construed as indication endorsement or approval by the Pacific Northwest Dental Conference or Washington State Dental Association

2 Welcome to the Pacific Northwest Dental Conference! To provide quality continuing dental education programs that will promote the highest standards of patient care and professionalism in the dental community. Complimentary Wi-Fi is available: Connect to HYATT-MEETING or MEYDENBAUER WELCOMES PNDC. Use Password: PNDC2015. Download the PNDC mobile app and fill out course evaluations for a chance to win a $100 restaurant gift card. Search PNDC in your app store. Please silent all cell phones. There is no photography or recording of any kind allowed during the presentation. Visit the Exhibit Hall at the Meydenbauer Center. There are drawings during the lunch hours on both days which include flat screen TVs, GoPros, and more. Please support our exhibitors who support the PNDC! risk management -and - RECORD KEEPING sponsored by NORDIC WSDA members may have your WSDA membership card scanned by the room ambassador and CDE verification forms will be available at the END of the course. Sign up for the Seattle/King County Clinic at Key Arena, October For more 1 information visit seattlecenter.org/skcclinic. Dental Assistants are especially needed. Legal Worries Dentists Tell Me About Two Primary Concerns: 1. Growing the Dental Practice 2. Legal Worries Statistics show dentists will have 3 to 5 legal actions in a career: Dental malpractice superior court action Dental board case Demand letter Worried about what angry patients may do. Negative reviews on social media. 1

3 Possibility #1 Civil Malpractice Action Per NORDIC*: 2% of dentists face a civil malpractice case in any one year Average Payout per claim: Approximately $80,000 NOTE: Some plaintiff s lawyers attempt to use a negative dental board result as a tool to leverage a settlement or civil lawsuit *Top-10 dental malpractice insurance company Top 10 Dental Negligence Categories* 26% Extractions (paresthesia; failure to timely refer) 17% Endodontics (broken instruments; nerve & sinus perforations) 10% Implants (improper evaluation leading to failure) 10% Crown & bridge (most cases involved multiple units) 8% Periodontics (failure to diagnose; over-treatment) 8% Orthodontics (root resorption) 5% Anesthesia (fatalities) 4% Infections (hospitalizations; most were smokers) 4% Injections (nerve damage; DDSs was told of adverse sensation) 2% Drug reactions (contraindicated with medical history) 6% Miscellaneous *Review of 242 dental malpractice cases by Crystal Baxter, DMD Eight-month post-op check. Delivery Date Checked # 26 for looseness and via PA and it seemed good Implant placed # 26 area. About 75% tight. 2

4 Fifteen-months post-delivery. Crowns seated on mini implants. 17 months after placement CT Scan by another dentist. Possibility # 2 Dental Board Action Per NORDIC*: 5% of dentists face a dental board case in any one year Dental board results affecting third-party providers Especially probation May drop a dentist as an in-network provider *Top-10 dental malpractice insurance company Board Complaint Allegations 2013: 22% Crown and Bridge 16% Complications during/after treatment 7% Implants 6% Oral surgery 6% Endodontics 5% Fraud or misrepresentation 4% Unnecessary treatment 3% Patient abandonment 3% Dentures 28% Miscellaneous Sanctions are posted on the state board s web site 3

5 Possibility #3 Demand Letter Involve insurance company? If the insurance company (a) pays a settlement, it will (b) report to the NPDB, who in turn will (c) notify the dental board, and the board may (d) open a complaint on its own No reporting if you pay the claim yourself Will a settlement affect future rates? 20% increase, declining 5% per year over four years Fight the claim? Q: What do these two examples have in common? 1) Legal action progression: Patient tells tale of woe to plaintiff s attorney Plaintiff s attorney agrees to investigate case Plaintiff s attorney requests dental records Dental records are reviewed by a dentist (expert witness) Expert witness opines that there were standard of care violations 2) War story Coumadin case A: The dental chart was reviewed first! The dentist s reputation, skill, education, CE hours, diplomat status, association honors, proctorship were not considered in determining whether a legal action should be filed. What is the best way to avoid legal actions? chart Chart CHART! If it s in the chart, it happened. If it s not, it didn t. Post-verdict juror comment to Jeff Tonner Poor or marginal charting is a factor in probably 90% of those [malpractice] cases. Comment from NORDIC* *Top-10 dental malpractice insurance company Why Don t Dental Offices Chart Better? Legal actions only happen to bad dentists. I chart well. [No, you don t] Dentists don t makes money by charting Dentists were never taught how to chart Dentists hate charting and delegate this task to their assistants without reviewing the entries Dentists are no damn good at it. SOLUTION: 1) Superior progress-note templates 2) Exceptional consent forms 3) Stay informed of dental-legal changes 4

6 SO WITH ALL THIS BLEAK NEWS HOW DO YOU SLEEP AT NIGHT AND NOT COUNT CEILING TILES? Follow these steps: A. Stay informed of changes. Don t be an ostrich. Profile of a Typical Dental Malpractice Patient 1.*Female 2.*Age *Employed in a health-related field B. Chart accordingly your chart is the single best defense you have no DDS ever made money charting, but many have lost it by not doing so C. Recall all of the cards and letters your patients have given you! 4. Use dental terminology 5. Dental office shopper 6. Refused to pay for new x-rays 7. Parent (usually mother) makes decisions for adult children (usually son) TERMINATION IF the Typical Dental Malpractice Patient profile, or your gut tells you this may be a problem patient, then consider termination. A dentist can terminate a patient at any time and for any reason. Exceptions: 1. Race, creed, color, etc. 2. Tx that is started but not finished Examples two-step endo Crown prep not seated Extraction for ortho (maybe?) TERMINATION cont. Use Termination Forms FEATURES 30 days emergency service treat palliatively refer to specialist 5

7 FOUR AREAS FOR LARGE SETTLEMENT #1 Area where dentists can get in trouble? 1. Failure to Detect Oral Cancer BIGGEST LEGAL RISK FOR DENTISTS BY FAR! In the U.S., one person dies from oral cancer every hour of every day. (G. Christensen, Clinicians Report, July/August 2012) Historically the death rate associated with this cancer is particularly high not because it is hard to discover or diagnose, but due the the cancer being routinely discovered late in its development. (The Oral Cancer Foundation) WAR STORY: Maricopa County jury verdict - $1.1M (1988) MORAL: Always chart that the lesion resolved! FOUR AREAS FOR LARGE SETTLEMENTS 1. Failure to Detect Oral Cancer FOUR AREAS FOR LARGE SETTLEMENTS 1. Failure to Detect Oral Cancer 2.Over Prescribing Narcotics HOW OFTEN should an oral cancer screen be performed? A # 1: Every office visit (best answer) A # 2: If the last OCS has been more than 3 months 2. Over Prescribing Schedule II and III Narcotics Maricopa County jury verdict - $1.8M Keep a running tally or use a separate sheet Maximum lifetime number not to exceed 100 [?] 6

8 FOUR AREAS FOR LARGE SETTLEMENTS 1. Failure to Detect Oral Cancer 2. Over Prescribing Narcotics 3. Lingual Paresthesia Following Third-Molar Extractions 3. Lingual Paresthesia Following Third-Molar Extractions Need written informed consent form Chart buccal involvement for surgical extractions FOUR AREAS FOR LARGE SETTLEMENTS 1. Failure to Detect Oral Cancer 2. Over Prescribing Narcotics 3.Lingual Paresthesia Following Third-Molar Extractions 4.Failure to Premedicate 4. Failure to Premedicate must be charted triple system to ensure charting recent case premed after-the-fact FOUR DENTAL RECORD CHECKPOINTS FOUR DENTAL RECORD CHECKPOINTS 1. History and Clinical A. Health History formal update every 24 months NCMH (No Change Medical History) every office visit WAR STORY stroke in dental office. 2. Soft tissue exam example: OCS- IOE + EOE- STE- MAKE SURE TO INCLUDE THE ORAL CANCER SCREEN SEPARATELY B. Clinical exam only needed for comprehensive office visits, not emergencies 1. chart restorative work, RCTs, missing teeth can be done on a tooth chart or in a column 7

9 FOUR DENTAL RECORD CHECKPOINTS FOUR DENTAL RECORD CHECKPOINTS 3. Perio Exam a) Full-mouth probe (best) or PSR (acceptable) Front and back office staff should memorize the 3 elements of a clinical exam and review file to ensure they are charted 2. Radiographs Initial set should be FMX, not pano and 4 BWs GENERAL RULE anytime the handpiece touches a tooth, you need a recent radiograph showing the apices of the tooth pano needed for edentulous arch = new dentures VERY IMPORTANT IF THE X-RAYS SHOW CONDITIONS DIFFERENT THAN YOUR CLINCAL EXAM, CHART THE DISCREPANCIES e.g. PA indicates D decay # 30, but carries indicator and explorer shows no decay. e.g. PA shows no decay # 30, but explorer sticks MB FOUR DENTAL RECORD CHECKPOINTS 3. Diagnosis a) most under charted element by dentists Example: # 14 PFM dx: decay under existing PFM # 15 MOD dx: fx d L cusp # 16 EXT dx: pain, impacted, crowding b) treatment with most missed dx perio if you dx more than a prophy, you need a perio dx to justify the tx Chart these symptoms: - pocket depths - radiographic bone loss - inflammation or BOP - calculus written dx for either Perio Type II or Adult Moderate periodontitis hygienists check to see that perio dx is recorded before beginning any procedure (except a prophy) FOUR DENTAL RECORD CHECKPOINTS 4. Treatment Planning Board requires only a progress note entry BETTER PRACTICE in writing with prices, signed by the patient 8

10 Informed Consent ADRA (Advantages, Disadvantages, Risks and Alternatives) Putting it All Together (progress note entry) NCMH. OCS-. Pain x 2 months. 3 PAs. Dx: decay ## 3, 13, 14. Options (1) fills (2) PFMs (3) APCs (4) inlay/onlay (5) nothing. Explain ADRA for each. Pt chooses #3. Treatment Expectations What if you choose not to perform certain procedures? Should you offer them as options? YES NCMH. OCS-. Pain # 13 x 2 months. PA. Dx: deep decay into pulp and vertical fx. Options (1) RCT, (2) ext. Pt chooses # 1. Refer to OS. Rest option (1) bridge, (2) partial, (3) implant (OS or Perio). Explain ADRA for each. Pt chooses #1. Patients file board complaints when dental treatment fails before they think it should Based upon what standard? How long is a dental procedure intended to last? Crowns 5 years Implants -??? Consider a written form Crowns Replacement w/in 1 st year = 100% Replacement w/in 2 nd year = 75% Replacement w/in 3 rd year = 50% Replacement w/in 4 th year = 25% Replacement after 5 th year = full fee * Pt must see you for regular hygiene 9

11 Bleaching Chart the perio condition is acceptable Spot probe and general condition dx: pt wishes Crown & Bridge If SRPs, cannot prep teeth until condition re-evaluated and improvement documented OR chart perio condition for those particular teeth Use temp cement for problem cases Post-seat BW Check fit, margins, contacts, occlusion, cement with, post-seat BW. Options: (1) PFM (2) APC (3) inlays/onlays (4) nothing Dentures (Immediate temporary) frequent board case train yourself and staff immediate TEMPORARY dentures Emergencies chart: Pt told to schedule comp [or recall] exam don t forget the ORAL CANCER SCREEN do not use the term provisional need complete (not limited) exam Consent form (emphasize two treatment phases) 10

12 Endodontics Chart subjective symptoms (hot, cold, pain, percussion, palpation) which lead to a dx of irreversible pulpitis PROBLEM AREAS short fill, over fill, broken file record pt told (and show on x-ray) offer endo consult monitor proactively Must chart rubber dam Unless working length PAs show clamps IF you cannot seat a rubber dam = automatic endo referral Extractions 3 rd molars problem area should an oral surgeon have removed? within 1 mm of nerve canal on x-ray degree of difficulty dilacerated roots impaction Need consent form (confirm with your eyes before starting) Pt offered OS referral, but declined I am a general dentist. Pt understands that extractions can be done by a specialist. Increasing number of board cases Increasing number of civil cases Problem Area hang on to case too long bone graft material fails exposed threads poor placement Patient expectations how is success defined? Implants I am a general dentist. Pt understands that implants can be done by a specialist. Local Anesthetic For multiple uses to avoid overmedication Record start time, anesthetic, # of carpules, % of carpules used Record same data for second use Record patient s weight For Example: 2:13 pm 3 carps Lido, 1:100,000 epi, use 75% of carps 3:10 pm 3 carps Septo, 1:100,000 epi, use 75% of carps Pt weight

13 Orthodontics Invisalign company forms do not require a dx, so make sure to record one in the progress notes need full ortho work-up diagnostic models Cephalometric film with analysis FMX photographs (extra- and intraoral) full periodontal charting (adults) and diagnosis (all) I am a general dentist. Pt understands that orthodontics can be done by a specialist. Periodontics SRP recommended, but pt only wants prophy can be done if the prophy offers some benefit, but only with cautionary instruction: Pt needs SRP, but only wants prophy because [that is all ins will pay]. Told pt prophy will have some benefit, but will only slow and not stop perio disease. Perio condition will continue to deteriorate with less than rec d tx. Explained high risk of tooth loss and poss serious cardiac/stroke consequences. Pt understands risks, but wants prophy anyway. use Explanation of Gum Disease and Associated Health Risks. For SRPs, use the difference between CDT 4341 four or more teeth per quadrant CDT 4342 one to three teeth per quadrant Computer Entries For unexpected or unfortunate results know lock down time frame does treatment erase/replace diagnosis avoid duplicate entries for same procedure, multiple times chart in draft form first consult with staff special attention to after-fact instructions consult with your attorney don t add progress note information after a subpoena is received 12

14 18-Word Seminar If it s in the chart, it happened. If it s not, it didn t. Oral Cancer Screen each office visit. Thank you so much for your kind attention Drive home safely! Cyber Risk HIPAA Risk Analysis & Incidence Response Plan Melissa Moore Sanchez, CIC Data Breaches are Escalating Between February 5th, 2005 and February 18 th, ,607,378 Between February 18 th, 2014 and January 15th, ,729,111 Between January 15 th, 2015 and June 8th, ,012,730,026 records containing sensitive personal information have been involved in security breaches! Source: Privacy Rights Clearinghouse Chronology of Data Breaches Security Breaches 2005 Present Posted Date: April 5, 2005 Updated Date: June 8,

15 Cyber Risk Trends Cyber Risk Exposures 804 breaches of PHI reported Involved 29,276,385 patient records 614 breaches reported in ,095,145 patient records were breached in % increase in number of patient records breached % of organizations surveyed had at least one data breach Lost/stolen unencrypted laptops/p.d. account for 35% of data breaches Identify theft from lost or stolen PHI Theft of laptop, smart phone, removable memory stick Employee error Malicious employee intent Inappropriate destruction of patient data Malicious hacking Redspin BREACH REPORT 2013 Ponemon Institute, LLC 2013 Annual Study: U. S. Cost of a Data Breach HIPAA HITECH Act It was designed to protect the confidentiality, integrity, and availability of health information which is vulnerable to and must be protected from: Hackers Disgruntled employee abuse Untrained personnel mishandling Exploitation by people not having a need to know Burglary and theft Unplanned system outages Fire, flood, and other natural disasters Civil Monetary Penalties for HITECH Act Violations Violations range from did not know to willful neglect - not corrected CMP s range from $100 to $50,000 for each violation CMP s are capped from $25,000 to $1,500,000; depending on the category of violation HITECH Act, Section 13410(d) Resolution agreements that include a monetary settlement are only a small fraction of complaint and compliance reviews we undertake. Jocelyn Samuels Director 14

16 Enforcements and Audits Enforcements and Audits Issues most investigated by the OCR (in order of frequency): Impermissible uses and disclosure of PHI Lack of safeguards of PHI Lack of patient access to their PHI Lack of administrative safeguards of ephi Use or disclosure of more than minimum necessary PHI When the OCR investigates a breach, we not only look at what was done to correct and remedy a breach, but what led to the incident to determine if noncompliance played a part. Jocelyn Samuels The most common covered entities that have been required to take corrective action: Private practices General hospitals Out-patient facilities Pharmacies Health Plans After the Incident Preparing for the Investigation OCR Incident Data Request Checklist Conduct a risk assessment Must be completed after every incident Determine whether notification is required Burden of proof If burden of proof not met, can be found negligent Will be subject to fines, penalties, corrective action We continue to see a lack of comprehensive and enterprise-wide risk analysis and risk management that leads to major breaches and other compliance problems. Jocelyn Samuels Example Data Request Primary designated contact with OCR Detailed explanation of the breach Copy of Notice of Privacy Practices (NPP) Copy of policies/procedures for safeguarding PHI, including training log of employees, training materials, employees certificates of completion of training (should be done annually!!!) Copy of policies/procedures for accounting PHI disclosures to OCR Copy of notification of the breach as required by 45 C.F.R Copy of media notification as required by 45 C.F.R Evidence of any action taken to determine root cause of the breach Evidence of any steps to ensure it does not recur Evidence & tracking of the notification of affected individuals Status 15

17 Preparing for the Investigation OCR Incident Data Request Checklist Example Data Request Names and titles of all employees involved in the breach Details of disciplinary measures taken against employees responsible for the breach Show what steps the dentist has taken with employees to ensure this doesn t happen again Provide copies of complete risk analyses before and risk assessment after incident Provide evidence of procedures to safeguard PHI on backup media before and after this incident Provide copies of all reports filed with law enforcement and their responses, concerning the theft of PHI Status State Security Breach Notification Laws Currently 47 states (plus Puerto Rico, Washington D. C. & Virgin Islands) require notification after unauthorized access to PHI In addition to the State s agency, many require notification of state attorney general, state consumer protection agencies, and credit monitoring agencies Timelines vary from state to state Some states allow private right of action for violations Many states have their own violation/penalty structure in addition to HIPAA Different countries have their own requirements Breach Related Expenses Notification Public Relations Forensics Legal Creating letter or Advertising and Legal expenses for Responses to other notification press releases outside attorney claims or suits Printing or design Call Center Cost of forensic Payment of Operations examinations judgments or Mailing or other settlements transmissions Other services for Cost to remediate affected persons discovered vulnerabilities Credit monitoring Be Prepared Incidence Response Plan Designate a HIPAA Privacy Official Create a written Incidence Response Plan: Know in advance which state, federal and local law enforcement and/or regulatory agencies should be contacted Know your time constraints Retain legal counsel Compliance issues Defense issues Breach mitigation firm to manage state and federal compliance regulations, public and patient communication 16

18 Be Prepared - Incidence Response Plan Risk Analysis/Risk Assessment huh? Contacts for Credit and identity theft monitoring Call center Media inquiries Statements to the press Social media Communication plan for staff response to calls Staff training on data breach incidents and reporting requirements At least annually Sooner if: New hire Changes to the laws or your policies and procedures Risk Analysis HIPAA Security Rule 45 CFR (a)(1)(ii)(A) Assessment of potential risks and vulnerabilities to the confidentiality, integrity, and availability of ephi Covered Entity and Business Associates Risk Assessment HIPAA Breach Notification Rule 45 CFR CE conducts after an incident Determines whether PHI has been compromised or breached Determines breach notification requirements Risk Analysis Risk Analysis Identify and evaluate HIPAA security risks Inventory your processes which create, maintain or transmit PHI Identify vulnerabilities, risks and threats Prioritize ranking of risks Create recommendations to address risks Routinely review and update as needed Who has access to information? Who would need access during a natural disaster Need to know basis Where is your data housed? Critical business/clinical processes including Photocopier Backup discs, CD s, DVD s, thumb drives How do you destroy? What steps are you taking to secure your computer/pds? Encrypted Password protected Security patch Firewalls/virus software In a secured location Monitor websites for infiltration Monitor for malware, malicious code Watch external access to computers (e.g. repair personnel, janitor, etc.) PD s are notoriously easy to lose or steal Identify, prioritize and address threats and vulnerabilities Routinely review and update your security measures Document each process!!! 17

19 Risk Assessment An incident has occurred: PHI involved Identifiers and risk of re-identifying Who is possession of the data Did they access How was risk mitigated Determine if notification is necessary OCR Patients Document!!! Prepare for the dance with the OCR Real Time Examples of Data Breaches O & W Orthodontics, O Fallon, MO The July 22 office theft of several computers resulted in the exposure of 10,000 patient s health information. Names, addresses, SSNs, X-rays, photos and diagnostic findings were exposed. Office of Dr.*, DMD, Rochester, New York Theft a doctor s laptop may have exposed 13,806 patients information, including names, dates, birthdates, SSNs, diagnosis, surgery billing codes. Mid-Florida Urological Associates, Orlando, FL Dishonest employee misused patient information claiming them as her children and received insurance compensation. She was charged with insurance fraud. Source: Privacy Rights Clearinghouse Real Time Examples of Data Breaches Froedtert Health, Milwaukee, IW Computer virus discovered on employee s work computer. One of the files contained patient names, health insurers, diagnoses and clinical info. Limited amount of SSNs exposed. Office of Dr*, Aurora, CO Employees accidently threw out hundreds of patient records. The dental records were found by someone in a dumpster and reported to the local news. Names, SSNs, DOBs and addresses were exposed. Northstar Healthcare, Chicago, IL An was sent to patients, displaying the names of all recipients. The was sent to patients being treated for HIV or AIDS and inadvertently revealed names and HIV status. Additional Keys to Survival Talk to a data breach expert Expert privacy/security compliance analysis (cheap compared to a breach!) OCR tool to complete risk analysis NORDIC insureds HIPAA Compliance Packet Consider cyber insurance Source: Privacy Rights Clearinghouse 18

20 Cyber Risk is Here to Stay Resources Understand your risk! Stephen Rose, J. D., Garvey Shubert Barer x 1375 Shawn Lindsay, J.D., Harris Berne Christensen Dan Briley, Summit Security Group DATA Mark DiRe, DDS, Experience Dentistry (secured exchange/management dental records) ID Experts The ADA Complete HIPAA Compliance Kit HHS/OCR HIPAA Privacy/Security Rules Training Materials Text of the HIPAA Final Omnibus Rule HIPAA/HITECH Privacy, Security & Breach Notification HHS/OCR Data Breach Site Resources HIPAA Final Omnibus Rule Playbook compliance analysis worksheet HHS/OCR Risk Analysis Tool OCR/NIST Guidance Materials for Risk Analysis OCR s Guidance on Risk Analysis Requirements Under the HIPAA Security Rule CMS HIPAA Security Series1: Security 101 for Covered Entities CMS HIPAA Security Series 6: Basics of Risk Analysis and Risk Management CMS HIPAA Security Series 7: Security Standards: Implementation for the Small Provider uleguidance.html Resources NIST Special Publications NIST Special Publication : Risk Management Guide for Information Technology Systems NIST Special Publication : An Introductory Resource Guide for Implementing the HIPAA Security Rule NIST Special Publication : Guide to Technical Aspects of Performing Information Security Assessments 19

21 Disclaimer Contact These materials are provided for educational purposes only and are not legal advice or intended to be substituted for legal advice. Parties affected by the issues discussed in these materials should consult with their legal counsel as the specific facts of any given case will greatly influence the legal advice given. It is important to note that these materials address an area of the law that is volatile and expected to have significant changes in the very near future which may completely alter the applicability of these materials to any situation. Melissa Moore Sanchez Shawn Lindsay, J.D. Northwest Dentists Insurance Company Harris Berne Christensen North Creek Parkway, Suite Bothell, WA Privacy/Security Compliance Assessment Summit Security Group, LLC Daniel M. Briley DATA (3282) (cell) 20

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